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Smt. ChamarIn Vs. Mst. BudhiyarIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 825 of 1971
Judge
Reported inAIR1975MP74
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) - Order 6, Rule 5 - Order 7, Rule 11
AppellantSmt. Chamarin
RespondentMst. BudhiyarIn and anr.
Appellant AdvocateRam Kumar Verma, Adv.
Respondent AdvocateN.S. Kale, Adv.
Cases ReferredTafazzul v. Shah Mohammad
Excerpt:
.....question whether an order of dismissal for failure to furnish particulars amounts to an order of dismissal for default within the meaning of subsection (2) of section 2 of the code. it was held in that case that 'default' in section 2(2)(b) of the code need not be confined to default of appearance but may include other defaults as well and thus an order dismissing an appeal for non-payment of court-fee was held to be an order of dismissal for default within the meaning of the said sub-section. 12. where a suit is dismissed for default for one reason or the other, there is no adjudication on merits and the suit is dismissed mainly because the plaintiff has failed to do something which was necessary for the progress of the suit. looking to the language of sub-section (2) of section 2 of..........on account of such defaults it is not possible for the court to proceed with the trial of the suit. dismissal of a suit for failure to furnish particulars is a default of this nature and the point for consideration is whether it amounts to a decree or not.9. in air 1941 nag 223 (supra) bose, j. proceeded upon the view that the dismissal of this nature amounts to a decree within the meaning of sub-section (2) of section 2 of the code because the order conclusively determines the rights of the parties to the suit vide observations in column 1 at p. 224. a decree as defined in the said sub-section means the formal expression of an adjudication. it is thus clear that the most important feature of a decree is that it contains a formal expression of an adjudication. this means that where.....
Judgment:

Raina, J.

1. The following questions have been referred to this Bench by the learned single Judge for decision:

(i) Whether rejection of a plaint on grounds other than those specified in Order 7, Rule 11 of the Code of Civil Procedure amounts to a decree?

(ii) Whether the dismissal of a suit for non-compliance with the provisions of Order 6, Rule 5 of the Code of Civil Procedure amounts to a decree and is as such appealable?

2. The aforesaid questions arose before one of us (Raina, J.) in civil revision No. 825 of 1971 -- Mst. Chamarin v. Sukhram-- in the following circumstances. The petitioner had filed a suit against the non-applicant for a declaration that she was entitled to half share in 4.37 acres of land and for joint possession of her share. On an application filed by the defendants under Order 6, Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for better particulars an order was passed by the trial Judge on 3-7-1971 directing the petitioner to furnish better particulars. The petitioner furnished certain particulars; but as, in the opinion of the Court, proper particulars had not been furnished, the suit was dismissed by the impugned order. Aggrieved thereby, the petitioner came up in revision before this Court.

3. A preliminary objection was raised on behalf of the non-applicant that the order in question, being appealable, the revision petition should not be entertained. In support of his contention the petitioner relied upon the decision of the Nagpur High Court in Nazir Abbas Sujjat Ali v. Raza Azamshah Raja Suleman Shah, AIR 1941 Nag 223. In that case it was held that the order of dismissal of a suit for non-compliance with an order under Order 6, Rule 5 of the Code amounts to a decree within the meaning of Sub-section (2) of Section 2 of the Code and hence an appeal lies from it. The observations of Bose, J. (as he then was) in the last paragraph of the judgment suggest that in such cases the dismissal amounts to rejection of the plaint.

4. In Civil Revision No. 542 of 1962, decided on 16-8-1963 = 1963 MPLJ (Notes) 249, Rajobai v. Kaluram, Shiv Dayal, J. held that where the rejection of a plaint does not fall within the purview of Order 7, Rule 11 of the Code, the order is not a decree within the meaning of Sub-section (2) of Section 2 of the Code. The suit in that case had not been dismissed for failure to furnish particulars; but on the basis of the reasoning adopted in that case it can be urged that the dismissal did not amount to rejection of the plaint on one of the grounds specified in Order 7, Rule 11 of the Code, and, therefore, did not amount to a decree within the meaning of Sub-section (2) of Section 2 of the Code, In order to resolve the apparent conflict between the two decisions, the aforesaid questions have been referred to this Bench for decision.

5. We shall first address ourselves to the question whether rejection of a plaint on grounds other than those specified in Order 7, Rule 11 of the Code amounts to a decree within the meaning of Sub-section (2) of Section 2 of the Code. The said sub-section is re-produced below for facility of reference:

' 'Decree' means the formal expression of an adjudication which, so far as regards the Court 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 47 or 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.'

6. From the language of the subsection it is clear that an order, which does not involve any adjudication of the matters in dispute, does not amount to a decree. An order rejecting a plaint under Order 7, Rule 11 of the Code does not involve any adjudication of the matters in dispute; but a fiction has been expressly created to treat such an order as a decree. Since an order rejecting a plaint is treated as a decree by a legal fiction created by Sub-section (2) of Section 2 of the Code, it should be confined to cases of rejection of the plaint expressly provided in the Code keeping in view the language of the main part of the sub-section. The only provision in the Code, which provides for rejection of a plaint in the circumstances specified therein, is Order 7, Rule 11. It would, therefore, be proper to hold that an order rejecting a plaint under Order 7, Rule 11 of the Code only shall amount to a decree. There may be cases where dismissal for default can also be looked upon as rejection of the plaint as in the case of 1963 MPLJ (Notes) 249 (supra); but since an order dismissing a suit for default has been expressly excluded from the definition of 'decree', it is obvious that it cannot amount to a decree. We, therefore, hold that rejection of a plaint on grounds other than those specified in Order 7, Rule 11 of the Code does not amount to a decree.

7. The next point for consideration is whether the dismissal of a suit for non-compliance with the provisions of Order 6, Rule 5 of the Code amounts to a decree. It has to be noted that an order of dismissal for default has been expressly excluded from the purview of 'decree' as defined in Sub-section (2) of Section 2 of the Code. We, therefore, proceed to consider whether an order dismissing a suit for non-compliance with the provisions of Order 6, Rule 5, of the Code amounts to an order of dismissal for default as contemplated by the said sub-section.

8. A suit may be dismissed for default of various kinds. Some defaults, for which the suit may be dismissed, are expressly mentioned in the Code, e.g., defaults in appearance for which express provision is made in Order 9 of the Code. Similarly, a suit may be dismissed for default in complying with an order to answer interrogatories under Rule 21 of Order 11 of the Code. There are other defaults for which a suit may be dismissed, because on account of such defaults it is not possible for the Court to proceed with the trial of the suit. Dismissal of a suit for failure to furnish particulars is a default of this nature and the point for consideration is whether it amounts to a decree or not.

9. In AIR 1941 Nag 223 (supra) Bose, J. proceeded upon the view that the dismissal of this nature amounts to a decree within the meaning of Sub-section (2) of Section 2 of the Code because the order conclusively determines the rights of the parties to the suit vide observations in column 1 at p. 224. A decree as defined in the said sub-section means the formal expression of an adjudication. It is thus clear that the most important feature of a decree is that it contains a formal expression of an adjudication. This means that where there is no adjudication, the order cannot amount to a decree. In our view, where a suit is dismissed for failure to furnish particulars, there is no adjudication and we are fortified in this view by the observations of their Lordships of the Privy Council in Abdulla v. Ganesh Das, AIR 19SS PC 68. In that case their Lordships quoted with approval the following observations of Lord Moulton in Batuknath v. Munni Devi, AIR 1914 PC 65.

'The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting or confirming the decision appealed from.'

It would, therefore, appear that 'where the Court does not deal judicially with the subject-matter of the suit there is no adjudication within the meaning of Sub-section (2) of Section 2 of the Code and as such the order does not amount to a decree within the meaning of the said sub-section.

10. Apart from this, Bose, J. did not take into consideration the proviso to the sub-section, which is in the following terms:

'.....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.'

An order of dismissal for default is thus expressly excluded from the definition of a decree. This leads us to the consideration of the question whether an order of dismissal for failure to furnish particulars amounts to an order of dismissal for default within the meaning of Subsection (2) of Section 2 of the Code. There has been divergence of opinion regarding the construction of the expression 'dismissal for default.' In some cases it has been narrowly construed as referring to dismissal for default of appearance. In some others it is construed as referring to only such defaults for which dismissal has been expressly provided in the statute; while in other cases the expression has been widely construed to cover all cases of dismissal for default'.

11. In Radhabai v. Mt. Purnibai, AIR 1943 Nag 149 it was held that the expression 'dismissal for default in Subsection (2) of Section 2 of the Code refers to those case of dismissal for default with which the Code specifically deals. In re N. Kayambu Pillai, AIR 1941 Mad 836 a Full Bench of the Madras High Court took a contrary view. It was held in that case that 'default' in Section 2(2)(b) of the Code need not be confined to default of appearance but may include other defaults as well and thus an order dismissing an appeal for non-payment of court-fee was held to be an order of dismissal for default within the meaning of the said sub-section. It was accordingly held that such an order did not amount to a decree and was not appealable. This decision was followed by the Allahabad High Court in Tafazzul v. Shah Mohammad, AIR 1949 All 261. The learned Judge, who decided the said case, while repelling the argument that 'default' should be confined to default in appearance only, made the following observations in paragraph 7:

'A dismissal for default of appearance does not determine any matters in controversy. Similarly, a dismissal for default on any other ground also does not determine any matter in controversy. There seems to be no reason why Legislature should have intended that dismissal for one kind of default will not amount to a decree whereas dismissal for another kind of default will amount to a decree,'

We agree with this view and we need not refer to the decisions in which the expression 'dismissal for default' has been narrowly construed so as to relate to cases of default of appearance only.

12. Where a suit is dismissed for default for one reason or the other, there is no adjudication on merits and the suit is dismissed mainly because the plaintiff has failed to do something which was necessary for the progress of the suit. We do not find any justification for construing the expression 'dismissal for default' narrowly so as to confine it to dismissal for default in appearance only. If that had been the intention of the Legislature, the language of the said sub-section would have been different and it would have been expressly laid down that an order of dismissal for default in appearance would not amount to a decree. Looking to the language of Sub-section (2) of Section 2 of the Code, a wider construction appears to be perfectly justified as adopted by the Madras High Court and Allahabad High Court in the cases referred to above.

13. It, therefore, follows that an order dismissing a suit for failure on the part of the plaintiff to furnish particulars amounts to a dismissal for default and as such does not amount to a decree within the meaning of Sub-section (2) of Section 2 of the Code. Such an order is, therefore, not appealable.

14. We, therefore, answer the questions referred to us as under:

(i) The rejection of a plaint on grounds other than those specified in Order 7, Rule 11, of the Code of Civil Procedure does not amount to a decree.

(ii) The dismissal of a suit for non-compliance with the provisions of Order 6, Rule 5, of the Code of Civil Procedure does not amount to a decree within the meaning of Sub-section (2) of Section 2 of the Code and is as such not appealable.


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