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Sudharsh Kumar Ahuja Vs. R.P. Joshi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2781 of 1984
Judge
Reported inAIR1985P& H260
ActsCode of Civil Procedure (CPC), 1908 - Sections 115(2) - Order 1, Rule 10 - Order 6, Rule 17 - Order 7, Rule 11 - Order 27, Rule 5-A
AppellantSudharsh Kumar Ahuja
RespondentR.P. Joshi and anr.
Cases Referred and Jagat Singh v. Joginder Paul
Excerpt:
..... held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or..........rejecting the application for amendment of the plaint is set aside, then automatically, the order rejecting plaint falls, and as such, the revision petition against the impugned order was competent. according to the learned counsel, if the trial court had not passed a composite order and would have passed a separate order declining the application for amendment of the plaint, then, obviously, the revision against the said order was maintainable. simply because the trial court has passed a composite order rejecting the application for amendment of the plaint and at the same time rejecting the plaint under o.7, r. 11 of the code, the plaintiff was not debarred from challenging the order declining his prayer for amendment of the plaint, in revision. in support of the contention, the.....
Judgment:

1. Rejected against the order of the trial court dt. July 24, 1984, whereby the application for permission to amend the plaint under O. 6 R. 17 read with O. 1 R. 10 and O.27 R. 5-A, Civil P. C. (hereinafter called the Code), was not allowed, and the plaint was rejected vide impugned order as the plaintiff had not impleaded the State Government as a party to the suit filed against a public officer, as contemplated under O. 27, R. 5-A of the Code.

2. A preliminary objection has been raised on behalf of the defendants-respondents that since the plaint was also rejected, it amounted to a decree and, thus, the impugned order was appealable and no revision was maintainable against the same view of sub-section (2) to S. 115 of the Code, which provides that the High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any other Court subordinate thereto. The learned counsel for the petitioner submitted that if the order rejecting the application for amendment of the plaint is set aside, then automatically, the order rejecting plaint falls, and as such, the revision petition against the impugned order was competent. According to the learned counsel, if the trial court had not passed a composite order and would have passed a separate order declining the application for amendment of the plaint, then, obviously, the revision against the said order was maintainable. Simply because the trial court has passed a composite order rejecting the application for amendment of the plaint and at the same time rejecting the plaint under O.7, R. 11 of the Code, the plaintiff was not debarred from challenging the order declining his prayer for amendment of the plaint, in revision. In support of the contention, the learned counsel relied upon Kumaraswamiah v. Krishan Reddi, AIR 1947 Mad 84; Damodar Prasad v. Ram Charan, AIR 1957 Pat 143; Jai Lal v. Prithvi Nath, Air 1954 J. and K. 54 and Mathura Prasad v. Parmanand, AIR 1960 Madh. Pra 161. On the other hand, the learned counsel for the respondents contended that where a plaint is rejected under Clause (d) of R. 11 of O. 7 of the Code, i.e., where the suit appears from the statement in the plaint to be barred by any law, then the order is appealable as a decree and no revision against such an order is maintainable. It was further contended by the learned counsel that even if a separate order would have been passed by the trial court dismissing the application for amendment of the plaint, even then, no revision was maintainable against such an order if meanwhile the plaint was rejected under O.7 R. 11(d) of the Code. In that situation, according to the learned counsel, the only remedy available to the plaintiff was to file an appeal against the order rejecting plaint and in that appeal he could also challenge the order rejecting his application for amendment of the plaint. In support of the contention, the learned counsel relied upon the Full Bench judgment of the Kerala High Court in Souri Varghese v. P. C. Assankutty, AIR 1972 Ker 56; the Full Bench judgment of the Madras High Court in Satyanarayanacharyulu v. Ramalingam, AIR 1952 Mad 86; Wajid Ali v. Jiga Bibi, AIR 1968 Ori 163; Kamalamma v. Mariyanna, AIR 1960 Mys 140 and Jagat Singh v. Joginder Paul, ILR (1973) I Punj and Har 400.

3. I have heard the learned counsel for the parties and have also gone through the case law cried at the bar.

4. The authorities relied upon by the learned counsel for the petitioner are clearly distinguishable and are not applicable to the facts of the present case. In Kumaraswamiah's case (AIR 1947 Mad 84) (supra), the plaint was rejected under O. 7 R. 11(b) of the Code. In Mathura Prasad's case (AIR 1960 Madh Pra 161) (supra), the question involved was whether an appeal lies against an order recording a compromise or not. In that context, it was held therein that whether an appeal is patent or not does not depend upon the availability of other remedies. The contention that the order recording the compromise has merged in the decree is not tenable, for, just because the Court passes a decree in terms of the compromise the right to prefer an appeal against the order recording it cannot be taken away. To hold otherwise will mean that the statutory right of a party under O. 43, R. 1(m) can be frustrated by passing a decree forthwith. The said case is, therefore, clearly distinguishable because against a decree passed on a compromise, no appeal is maintainable whereas an appeal is provided under O. 43 R. 1(m) of the Code against an order recording a compromise. Besides, in Kumaraswamiah's case (supra), the defendant Court-fee was to be paid by a particular date. Application for extension of the time for doing the needful was rejected. As a result, the plaint was rejected for non-payment of the deficit court-fee by the time allowed earlier. The order rejecting the application for extension of time was set aside on review. In these circumstances, it was held therein that on the setting aside of the order rejecting the application for extension of time, the consequential order rejecting the plaint would be automatically set aside and, therefore, it was not necessary for the plaintiff to appeal against that order in order to have it set aside. Thus, the said case has no applicability to the facts of the present case.

5. The ratio of the decision in Souri Varghese's case (AIR 1972 Ker 56) (supra) is to the effect that where against the order of the court calling upon the plaintiff to pay additional Court-fee, the plaintiff files a revision petition, but before it was admitted, the plaint itself was rejected for plaintiff's default for payment of Court-fee, the order of rejection of plaint being a decree, the proper remedy for plaintiff was an appeal and not revision. In the said case two separate orders were passed by the Court; one, allowing the plaintiff to pay the deficit Court-fee, and the other, rejecting the plaint for noncompliance of the said order. Revision petition was filed against the first order. During the pendency of the revision petition, the second order, as mentioned above, was passed and the plaint was rejected. It was in the these circumstances held therein that where a plaint is rejected under O.7, R. 11 of the Code for default to pay additional Court-fee even before the admission of a revision petition filed against order calling for payment of additional Court fee, the revision petition was not maintainable. Similarly, in Satyanarayanacharyulu's case (AIR 1952 Mad 86) (FB) (supra), it was held that where an order directing payment of additional Court-fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable against the latter. The proper remedy is only by way of an appeal against the order rejecting plaint which is a decree under S. 2(2) and is appealable as such. Once an appealable order in the form of an order rejecting the plaint is passed, a revision petition cannot also be filed against the earlier order demanding additional Court-fee. Such a petition is against the well-established principles of procedural law. To the same effect was the law laid down in Wajid Ali's Case, (AIR 1968 Ori 163) and Kamalamma's case (Air 1960 Mys 140) (supra). I am in respectful agreement with the ratio of the Full Bench decision of the Madras High Court in Satyanarayanacharyulu's case (Air 1952 Mad 86) (supra) and the ration of the Full Bench judgment of the Kerala High Court in Souri Varghese's case (AIR 1972 Ker 56) (supra). Since the plaint itself has been rejected by the impugned order by the trial court in the present case, which is admittedly an appealable one, the only remedy open to the plaintiff is to file an appeal against the said order, and in view of sub-section (2) to S. 115 of the Code, the revision petition as such is not maintainable. On principle also, it would not have made any difference if an order rejecting the application for seeking amendment of the plaint was decided by a separate order and then the plaint was rejected by another order. In that situation also since the plaint would have been rejected, the plaintiff could file an appeal only against the said order and in that appeal he could challenge the order declining the prayer for amendment of the plaint in view of the provisions of S. 105 of the Code?

6. In this view of the matter, the preliminary objection raised on behalf of the defendants-respondents, prevails and this revision petition is liable to be dismissed as not maintainable. However, the petitioner will be at liberty to seek his remedy in accordance with law.

7. Consequently, this revision petition fails and is dismissed as not maintainable with no order as to costs.

8. Revision Dismissed.


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