A seminal question has arisen as regards the legal remedy available against an order passed in an appeal arising out of an order of rejection of plaint passed under Order VII Rule ...
No Acts & Articles mentioned in this case
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A.F.R.
Court No. 78
Case : SECOND APPEAL No. 599 of 2023
Appellant : Shrivatsa Goswami
Respondent : Anant Prasad Singh And Another
Counsel for Appellant : Tarun Agrawal
Counsel for Respondent : Dinesh Kumar Misra,Anita
Singh,Ishir Sripat
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. A seminal question has arisen as regards the legal remedy
available against an order passed in an appeal arising out of
an order of rejection of plaint passed under Order VII Rule 11
of the Civil Procedure Code, 1908
1
.
2. It has been pointed out that there is considerable
obfuscation on the issue with no clear enunciation of law on
the point.
3. Heard Sri Tarun Agrawal, learned counsel for the appellant
and Sri Rahul Sripat, learned Senior Counsel appearing along
with Sri Ishir Sripat for the respondents. Sri Ajay Kumar
Singh, learned counsel has also been heard.
4. The present appeal is directed against the judgment and
order dated 07.04.2023 passed by the Additional District
Judge, Court No. 8, Mathura in Civil Appeal No. 67 of 2022
(Anant Prasad Singh Vs. Shrivatsa Goswami and Another),
whereby the appeal has been allowed and the earlier order
dated 22.11.2022 passed by the trial court rejecting the plaint
1the Code
2
under Order VII Rule 11 of the Code, has been set aside.
5. The facts giving rise to the aforesaid controversy emanates
from an original suit being O.S. No. 83 of 2022 instituted by
the plaintiffrespondent, seeking to declare as null and void a
registered gift deed dated 25.05.1986 executed in favour of
the predecessorininterest of the defendant as well as the
subsequently registered gift deed dated 17.10.1987 executed
in favour of the father of the defendantappellant herein.
6. The suit having been instituted in the year 2022, years
after the first gift deed registered on 25.05.1968, the
defendant moved an application under Order VII Rule 11(d)
for rejection of the plaint as being barred by limitation.
7. The trial court allowed the application under Order VII
Rule 11 and held the suit to be barred by limitation and
accordingly rejected the plaint.
8. The decree dated 22.11.2022 passed by the trial court
rejecting the plaint, was assailed by the plaintiffrespondents
in Civil Appeal No. 67 of 2023.
9. The aforesaid appeal has been allowed by an order dated
07.04.2023 setting aside the earlier order of rejection of the
plaint dated 22.11.2022, with a direction to the trial court to
restore the suit to its original number, reregister the Original
Suit No. 83 of 2020, invite objections/written statements from
the defendants, in addition to other issues, frame an issue
regarding limitation and after taking evidence give a decision
on all the issues that have been framed. The lower appellate
court, also fixed a date for appearance of the parties before
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the trial court and directed that the records of the case be
remitted to the trial court for proceeding with the case.
10. It is against the aforesaid order dated 06.03.2023 passed
by the lower appellate court in Civil Appeal No. 67 of 2022,
that the defendantappellant has preferred the instant appeal
under Section 100 of the Code.
11. The question with regard to the maintainability of the
appeal has been raised on behalf of the plaintiffrespondent
by pointing out that the order dated 07.04.2023 passed by the
lower appellate court being an order of remand under Order
XLI Rule 23/23A of the Code, the same would be amenable
to an appeal from an order as described under Order XLIII
Rule 1(u) of the Code read with Section 104(1)(i).
12. It is submitted that the trial court having disposed of the
suit on the preliminary issue of limitation and the lower
appellate court having set aside the aforesaid
judgment/decree passed by the trial court with a direction to
decide the suit on the said preliminary issue after framing
other issues, the order passed by the lower appellate court
would be referable to its powers under Order XLI Rule 23 of
the Code. The order would be amenable to an appeal under
Order XLIII Rule 1(u) and cannot be subjected to a Second
Appeal under Section 100 of the Code. The present appeal
would therefore not be maintainable and is liable to be
dismissed.
13. An objection has been raised by the Stamp Reporter, also,
with regard to the maintainability of the appeal.
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14. Learned counsel for the appellant while responding to the
aforesaid objections regarding maintainability of the appeal,
has sought to point out that the lower appellate court while
allowing the appeal has directed the issue of limitation to be
decided after receiving evidence. In the last paragraph of the
order the appellate court has further directed that the matter
be sent back to the trial court to decide the suit in terms of
the directions given.
15. It is submitted that it is the last paragraph of the order
that has perhaps given rise to a confusion as to the nature of
the order dated 06.04.2023, on the basis whereof the
plaintiffrespondent has questioned the maintainability of the
present second appeal on the ground that the impugned order
is, in fact, an order of remand under Order XLI Rule 23 of the
Code against which an appeal from order, under Order XLIII
Rule 1(u), would lie.
16. It is pointed out that the trial court has allowed the
appeal by holding that the issue of limitation being a mixed
question of law and fact could not be decided without
receiving evidence. The question was, therefore, left open to
be decided after framing of issues and receiving evidence. The
application of the plaintiff under Order VII Rule 11 of the
Code has been rejected for the reason that the parameters of
consideration at this stage would be entirely different from
those available after the framing of issues.
17. It is submitted that while deciding the application under
Order VII Rule 11 of the Code, the court can only consider the
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allegations made in the plaint; however, while deciding the
issue of limitation, the court would necessarily have to
consider the averments made in the plaint and the written
statement as well as the evidence led by the parties. The
directions contained in the impugned order being tantamount
to rejection of the application under Order VII Rule 11 of the
Code, there was no requirement for the lower appellate court
to issue any further direction to the trial court, and the
directions in this regard by the lower appellate court are
superfluous.
18. It is contended that the remand contemplated under
Order XLI Rule 23 of the Code, requires an exercise of judicial
discretion on part of the appellate authority, and therefore the
matter could be remanded only where the appellate court
while reversing or setting aside the decree considered it in the
interest of justice to remand the case. While passing an order
referable under Order XLI Rule 23 of the Code, revival of
proceedings before the trial court is not automatic but
contingent upon the exercise of judicial discretion on part of
the appellate authority. In the present case, the revival of the
suit is not seen to be contingent upon exercise of any judicial
discretion on part of the lower appellate court regarding the
demands of interest of justice. Once the decree was reversed
the revival of the suit before the trial court was automatic,
and was not contingent upon any further determination on
part of the lower appellate court regarding the necessity to
remand the case.
19. It is sought to be urged that an appeal under Order XLIII
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Rule 1(u) of the Code, in a case of such nature, would be a
futility inasmuch as it would not be open to the appellant to
question the exercise of discretion by the appellate authority
in remanding the case as the revival of the suit is automatic
and not contingent upon any judicial discretion.
20. It is further urged that Order XLI Rule 23 of the Code,
applies only in a situation where the suit has been disposed of
upon a preliminary point. A 'preliminary point' being distinct
from a 'preliminary issue', the court may, after framing the
issues, decide any issue as a preliminary point. In the present
case, the issues having yet not been framed, there was no
question of the impugned judgment having been passed on a
preliminary point.
21. It is also submitted that the scope of examination while
deciding an 'issue' is entirely different inasmuch as at that
stage the trial court is required to take into account the
averments made in the plaint and the written statement as
also the evidence led by the parties; accordingly, while
deciding an application under Order VII Rule 11 of the Code,
the trial court does not dispose the suit on a preliminary point
as this stage can only arise after framing of issues. The
judgment of the lower appellate court reversing the decree is,
therefore, not referable to Order XLI Rule 23 of the Code.
22. In order to appreciate the controversy at hand, the
relevant statutory provisions of the Civil Procedure Code,
1908, are being extracted hereinbelow:
“Section 2(2) "decree" means the formal expression of an
adjudication which, so far as regards the Court
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expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a
plaint and the determination of any question within
section 144, but shall not include
(a) any adjudication from which an appeal lies as an
appeal from an order, or
(b) any order of dismissal for default.
Explanation.A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly
preliminary and partly final;
96. Appeal from original decree. (1) Save where
otherwise expressly provided in the body of this Code or
by any other law for the time being in force, an appeal
shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorised to hear
appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex
parte.
(3) No appeal shall lie from a decree passed by the Court
with the consent of parties.
(4) No appeal shall lie, except on a question of law, from
a decree in any suit of the nature cognizable by Courts of
Small Causes, when the amount or value of the subject
matter of the original suit does not exceed ten thousand
rupees.
100. Second appeal. (1) Save as otherwise expressly
provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of
law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of
law involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
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that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of
the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this subsection shall be deemed
to take away or abridge the power of the Court to hear,
for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is
satisfied that the case involves such question.
104. Orders from which appeal lies. (1) An appeal
shall lie from the following orders, and save as otherwise
expressly provided in the body of this Code or by any law
for the time being in force, from no other orders:
(ff) an order under Section 35A;
(ffa) an order under Section 91 or section 92 refusing
leave to institute a suit of the nature referred to in
Section 91 or Section 92, as the case may be;
(g) an order under Section 95;
(h) an order under any of the provisions of this Code
imposing a fine or directing the arrest or detention in the
civil prison of any person except where such arrest or
detention is in execution of a decree;
(i) any order made under rules from which an appeal is
expressly allowed by rules:
Provided that no appeal shall lie against any order
specified in clause (ff) save on the ground that no order,
or an order for the payment of a less amount, ought to
have been made.
(2) No appeal shall lie from any order passed in appeal
under this section.
Order VII Rule 11:
11. Rejection of plaint.The plaint shall be rejected in
the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and
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the plaintiff, on being required by the Court to supply the
requisite stamppaper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of
Rule 9;
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamppapers shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp
papers, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause
grave injustice to the plaintiff.
Order XLI Rule 23:
Remand of case by Appellate Court.Where the Court
from whose decree an appeal is preferred has disposed of
the suit upon a preliminary point and the decree is
reversed in appeal, the Appellate Court may, if it thinks
fit, by order remand the case, and may further direct
what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is
preferred, with directions to readmit the suit under its
original number in the register of civil suits, and proceed
to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.
Order XLIII Rule 1(u):
Appeals from orders.An appeal shall lie from the
following orders under the provisions of Section 104,
namely:
(a) …
…
(u) an order under Rule 23 or Rule 23A of Order XLI
remanding a case, where an appeal would lie from the
decree of the Appellant Court;
...”
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23. It would also be relevant to refer to the Notification dated
Allahabad, April 27, 1957 published in the U.P. Gazette, Part
II, dated June 1, 1957, whereby the High Court of Judicature
at Allahabad had made certain amendments in the First
Schedule of the Code of Civil Procedure, 1908, in exercise of
powers under Section 122 and with the previous approval of
the Government of the State as required by Section 126 of the
Code. The amendment relating to Order XLI Rule 23 is as
follows:
“(i) Insert the following after the words “and the decree
is reversed in appeal”, namely: “or where the Appellate
Court while reversing or setting aside the decree under
appeal considers it necessary in the interest of justice to
remand the case, it”; and
(ii) Delete the words “the Appellate Court” occurring
thereafter and delete also the words “if it thinks fit”,
occurring after the words “may”.”
24. The term 'decree' has been defined under Section 2(2) of
the Code, wherein it has been provided that the rejection of
the plaint shall be deemed to be included within the
definition of the term.
25. The Code has defined the term 'decree' under Section 2(2)
to include the determination of any preliminary matter and
the said definition is extended to an order rejecting a plaint
even though it may not be a decision on merits and the rights
of the parties may not have been adjudicated finally.
26. The order, aforementioned, by reason of Section 2(2),
would be deemed to be a 'decree' and hence would be
appealable under Section 96 as an appeal from original
decree. It is to be treated as a decree as the effect of the order
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is denial of the reliefs sought, and therefore a virtual dismissal
of the suit.
27. An order rejecting a plaint, even otherwise, would have to
be held to be a decree, as it amounts to refusal of any relief to
the plaintiff in the particular suit. This would lead to dismissal
of the suit, and would, therefore, be a decree within the main
part of the definition under Section 2(2) also.
28. The distinction which is sought to be borne in mind is that
under the deeming clause of Section 2(2), what is held to be a
'decree' is not the 'order', which may be of an interlocutory
nature, but its effect in the ultimate or final dismissal of the
suit, which, under law, disposes of the suit, though by a
decision on a particular issue, as distinguished from an
adjudication on all the issues.
29. A deeming provision is generally utilised in statutory
enactment to deem what is not there in reality, thereby
requiring the subject matter to be treated as if it were. There
are, however, authorities to show that a deeming fiction can
also be used to put beyond doubt a particular construction
that might otherwise be uncertain or to give to the statutory
language a comprehensive description so that it includes what
is obvious.
30. Stroud's Judicial Dictionary of Words and Phrases
2
,
defines 'deemed' as follows:
“'Deemed' – as used in statutory definitions “to extend
the denotation of the defined term to things it would not
in ordinary parlance denote”, is often a convenient
2Stroud's Judicial Dictionary of Words and Phrases (7
th
Edn., 2008)
12
device for reducing the verbiage or an enactment, but
that does not mean that wherever it is used it has that
effect; to deem means simply to judge or reach a
conclusion about something, and the words “deem” and
“deemed” when used in a statute thus simply state the
effect or meaning which some matter or things has—the
way in which it is to be adjudged; this need not import
artificiality or fiction; it may simply be the statement of
an indisputable conclusion.”
31. The meaning of word 'deemed' as used in statutory
definitions, has been explained by Lord Radcliffe in St.
Aubyn Vs. Attorney General
3
, in the following words:
“… The word “deemed” is used a great deal in modern
legislation. Sometimes it is used to impose for the
purposes of a statute an artificial construction of a word
or phrase that would not otherwise prevail. Sometimes it
is used to put beyond doubt a particular construction
that might otherwise be uncertain. Sometimes it is used
to give a comprehensive description that includes what is
obvious, what is uncertain and what is, in the ordinary
sense, impossible.”
32. The use of the word “deemed” in statutory definitions was
explained by Windener, J., in Hunter Douglas Australia Pty.
v. Perma Blinds
4
, by stating:
“14. ‘Deemed’, as used in statutory definitions [is meant]
‘to extend the denotation of the defined term to things it
would not in ordinary parlance denote, is often a
convenient devise for reducing the verbiage of an
enactment, but that does not mean that wherever it is
used it has that effect; to deem means simply to judge or
reach a conclusion about something, and the words
“deem” and “deemed” when used in a statute thus simply
state the effect or meaning which some matter or thing
has — the way in which it is to be adjudged; this need not
import artificiality or fiction; it may simply be the
statement of an undisputable conclusion'.”
33. It may, therefore, be inferred that the use of a deeming
clause in a statutory enactment is not always for the purpose
31952 AC 15 (HL)
4(1970) 44 Aust LJR 257
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of creating a fiction but, at times, to state something which
follows as an obvious consequence. The rejection of a plaint
has a natural consequence of the reliefs being denied. It is
possibly for this reason that the rejection of a plaint has been
held to be a 'decree' in terms of the deeming clause under
Section 2(2) of the Code.
34. Order VII Rule 11 relates to rejection of the plaint, on the
grounds specified therein. The conditions precedent to
exercise of the said power are stringent, and the power to
reject the plaint can be exercised only upon fulfilment of the
conditions provided therein. In order to ascertain whether any
of the grounds specified under Order VII Rule 11 are
attracted, the court has to read averments in conjunction with
documents relied upon in the plaint as a whole without
addition or subtraction of any word. In substance, what is to
be seen at that stage are only the averments made in the
plaint, and the pleadings of the defendants in the written
statement would be wholly irrelevant for the purpose.
35. The effect of rejection of a plaint is drastic, as in a way, it
results in the conclusion of the proceedings. It is perhaps for
this reason that an order rejecting the plaint has been held to
be a 'deemed decree' under Section 2(2) of the Code.
36. The rejection of plaint under Order VII Rule 11 having
been held to be covered within the definition of a 'decree'
under Section 2(2), under its deeming clause, the said order
becomes amenable to appeal under Section 96 of the Code
which provides for an appeal from original decree.
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37. Although, an order rejecting a plaint is neither an
adjudication on merits nor it conclusively determines the
rights of the party with regard to all or any of the matters in
controversy in the suit, yet insofar as the court passing the
order is concerned, it amounts to rejection of the case sought
to be set up by the plaintiff and resultantly the right of the
plaintiff to pursue the case stands exterminated. The order
rejecting a plaint, thus, in a way, can be held to have a
conclusive effect on the right of the plaintiff to prosecute that
particular suit any further. The conferment of the status of a
decree, adds a finality to the said order. It makes it binding
upon the parties.
38. In the instant case, the trial court, by means of the order
under Order VII Rule 11, rejected the plaint as being barred
by law, i.e. limitation. Therefore, the order can be seen as
conclusively determining the rights of the parties with regard
to one of the matters in controversy in the suit, i.e. limitation.
Although, it was not an order passed after framing an issue, at
the same time, there was adjudication on the question as to
whether the suit was barred by limitation. The deeming
clause under subsection (2) of Section 2 of the Code, thus,
becomes attracted, and the order passed by the trial court
would have to be held to be a 'decree' within the meaning of
the term as defined under the subsection.
39. It is this order of the trial court rejecting the plaint, which
was carried in appeal under Section 96 of the Code, and the
said appeal has been allowed in terms of the order dated
07.04.2023, against which the present appeal has been filed.
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40. If, it were a situation where the appeal filed against the
order rejecting the plaint under Order VII Rule 11, had been
dismissed, it would be effectively an order determining the
rights of the parties and concluding the proceedings. The
order passed in the appeal would, therefore, again be a
'decree' within the meaning of the Section 2(2), and the same
would be subject to a further appeal under Section 100 of the
Code.
41. However, in the present case, the appeal filed against the
order of the trial court rejecting the plaint under Order VII
Rule 11, having been allowed, and the matter having been
remitted to the trial court for fresh adjudication, a question
has arisen as to whether the order passed in the appeal, can
be held to be a 'decree' within the meaning of Section 2(2), so
as to be amenable to a further appeal under Section 100, or it
would have to be held to be an order of remand referable to
the provisions under Order XLI Rule 23 so as to be subject to
an 'appeal from an order' under Section 104 read with Order
XLIII Rule 1(u) of the Code.
42. The order passed by the lower appellate court allowing
the appeal and setting aside the order passed by the trial
court rejecting the plaint under Order VII Rule 11 with a
further direction to reregister the suit, invite objections from
the defendants for framing issues and after taking evidence
give a decision on all the issues, cannot be held to be a
judicial determination conclusively determining the rights of
the parties. The order, therefore, cannot be held to be a
'decree' so as to amenable to a further appeal under Section
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100 of the Code.
43. The question which remains for consideration is as to
whether the order passed by the lower appellate court can be
held to be an order of remand so as to be amenable to an
appeal in terms of the provisions of Section 104 of the Code
read with Order XLI Rule 23.
44. Rule 23 of Order XLI, as it reads consequent to the
Allahabad Amendment, is as under:
“Remand of case by Appellate Court.Where the court
from whose decree an appeal is preferred has disposed of
the suit upon a preliminary point and the decree is
reversed in appeal or where the appellate court while
reversing or setting aside the decree under appeal
considers it necessary in the interest of justice to remand
the case, it may, by order remand the case, and may
further direct what issue or issues shall be tried in the
case so remanded, and shall send the copy of its
judgment and order to the court from whose decree the
appeal is preferred, with directions to readmit the suit
under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any)
recorded during the original trial shall, subject to all just
exceptions, be evidenced during the trial after remand.”
45. A plain reading of the aforesaid provision indicates that
Rule 23 (as amended by the Allahabad Amendment),
contemplates a remand in the following two situations:
I. where the court from whose decree an appeal is preferred
has disposed of the suit upon a preliminary point and the
decree is reversed in appeal; or
II. where the appellate court while reversing or setting aside a
decree under appeal considers it necessary in the interest of
justice to remand the case.
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46. The Allahabad Amendment to Order XLI Rule 23 of the
Code has thus widened the scope of the provision, whereas
formerly a remand could be made only in a case where the
decree of the lower court disposing the case had proceeded on
a preliminary point, the position consequent to the
amendment is that a remand order can also be passed in a
case where the court considers it necessary in the interest of
justice to do so. In other words, a remand order can be passed
in a case which was disposed of on a preliminary point as also
in a case where the court is of the opinion that the interest of
justice requires remand of the case.
47. Under the unamended provision, a remand could be made
where the suit had been decided on a preliminary issue and
there was no adjudication in respect of the other pleas,
whereas in a case covered by the amended provision a
remand can also be made where there has been an
adjudication on all the pleas by lower court and the court
considers it necessary in the interest of justice to remand the
case for rehearing.
48. The first appellate court while reversing a decree arising
out of a preliminary point must as of necessity remand the
case. This power to remand the case flows from subsection
(1)(b) of Section 107 of the Code, as also from Order XLI
Rule 23, as referred above.
49. The contention that rejection of the application under
Order VII Rule 11 of the Code, at the appellate stage, would
result in automatic restoration of the suit without the
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appellate court being required to pass any specific order of
remand, suffers from an inherent fallacy which is not difficult
to fathom.
50. The trial court becomes functus officio once it passes a
decree. An order rejecting the plaint is a decree by virtue of
the deeming clause under Section 2(2) of the Code.
Therefore, the trial court, having once passed the decree,
would not automatically regain seisin over the matter unless it
is remanded back to it. This possibly explains the insertion of
Rule 26A under Order XLI, by the Amending Act of 1976,
requiring the appellate court to fix a date for the appearance
of the parties before the trial court consequent to the remand.
This also flows from the language of Order XLI Rule 43, which
requires the appellate court to issue directions to the trial
court to readmit the suit under its original number in the
register of civil suits and proceed to determine the suit. This
leaves no room for doubt that there is no automatic revival or
restoration of the suit unless an order of remand is passed.
Thus, whenever a decree of the trial court is reversed by the
appellate court, unless there is any express order of remand,
the trial court would not regain seisin of the matter and would
continue to remain functus officio in that regard.
51. There being no provision in the Code providing automatic
revival of the suit, the order of the appellate court directing
readmission of the suit, cannot be said to be superfluous;
rather the direction to readmit the suit under its original
number in the register of civil suits and to proceed to
determine the suit, would be necessary together with the
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order of remand.
52. In every case where a decree on a preliminary point is
reversed, the matter would, as of necessity, have to be
returned to the court below for completion of the trial. It is
for this reason that Order XVI Rule 23 contemplates an order
of remand. If the resumption of the suit were automatic, a
provision of remand may not have been necessary under Rule
23 of Order XLI.
53. To address the question which has fallen for consideration
regarding the maintainability of the present second appeal, it
would be necessary to examine the remedies available
consequent to an order being passed by the civil court under
the provisions of the Code. A close reading of the provisions
of the Code would lead to an inference that the remedies
available under the Code would be the following:
(i) where the order is a 'decree' as defined under Section 2(2)
of the Code, it would be subject to an appeal under Section
96, with a further remedy of a second appeal under Section
100 of the Code;
(ii) where the order is not a 'decree' but is an order of the
nature as described under Section 104 read with Rule 1 of
Order XLIII, it would be subject to an appeal as an appeal
from an order under Section 104 read with Order XLIII Rule 1
of the Code, without any provision for a further second
appeal.
(iii) where the order is neither a 'decree' nor an 'appealable
order' as specified under Section 104 read with Order XLIII
20
Rule 1, it may be subject to a revision under Section 115,
subject to fulfilment of the requirements of the section.
54. A noticeable difference between a 'decree appealable
under Section 96' and an order 'appealable under Section 104'
is that the remedy of a second appeal is available against a
decree passed in an appeal under Section 96, whereas no
further appeal lies from an order in an appeal under Section
104 read with Order XLIII Rule 1 of the Code.
55. The position which emerges from the foregoing
discussion, in regard to the remedies available against an
order passed in an appeal arising out of an order rejecting a
plaint under Order VII Rule 11 of the Code, may thus be
summarised in the following manner:
I. In a case where the application under Order VII Rule 11 has
been allowed by the trial court and as a consequence the suit
has been dismissed, and the said order is affirmed in appeal,
the order of the first appellate court assumes the character of
a 'decree' in terms of Section 2(2) of the Code, and a second
appeal under Section 100 would lie against such a decree.
II. Alternatively, where in an appeal filed against an order of
the trial court rejecting the plaint under Order VII Rule 11,
the first appellate court reverses the order thereby restoring
the suit to be tried on merits, it would in effect be an order of
remand referable to Order XLI Rule 23, and would be subject
to an appeal under Order XLIII Rule 1(u).
The appeal in latter case, though not a second appeal under
Section 100, would nonetheless be required to be admitted
21
and heard on a substantial question of law and on grounds on
which a second appeal is heard under Section 100, as has
been laid down in Narayanan Vs. Kumaran and Others
5
and
Gegannathan Vs. Raju Sigamani and Another
6
.
56. Putting it succinctly, it may be stated as a legal
proposition that where an order rejecting a plaint under
Order VII Rule 11 is affirmed in appeal, it would be subject to
a further remedy of second appeal under Section 100,
alternatively, if the appellate court reverses the order of
rejection of the plaint, the remedy would be to file an 'appeal
against an order' under Order XLIII Rule 1(u).
57. Applying the aforestated legal principles, to the facts of
the present case, leads to the inference that the order dated
07.04.2023 passed in Civil Appeal No. 67 of 2022 in terms of
which the order dated 22.11.2022 passed by the trial court
rejecting the plaint under Order VII Rule 11 of the Code, has
been reversed with a direction to restore the suit to its
original number and proceed to determine the suit, cannot be
held to be a 'decree' amenable to a second appeal under
Section 100 of the Code.
58. The order in question would have to be held a 'remand
order' covered under Order XLI Rule 23 of the Code (as read
in terms of the Allahabad Amendment), and it would be
subject to the remedy of an 'appeal from an order' under
Section 104 read with Order XLIII Rule 1(u) of the Code.
59. The objection of the Stamp Reporter, in this regard,
5(2004) 4 SCC 26
6(2012) 5 SCC 540
22
therefore, cannot be held to be unsustainable.
60. Counsel for the appellant is permitted to convert the
present appeal filed under Section 100 to 'an appeal against
an order' under Section 104 read with Order XLIII Rule 1(u)
of the Code.
61. A week's time is granted to the appellant to file a fresh
memorandum of appeal, if so required.
62. Office is directed to reregister the appeal as an 'appeal
from an order' under Section 104 read with Order XLIII Rule
1(u) of the Code, and place it as fresh, before the
appropriate Bench, on 30.01.2024.
Order Date : 17.01.2024
Arun K. Singh
[Dr. Y.K. Srivastava, J.]
Legal Notes
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