Skip to content


Mt. Phool Sundri Vs. Gurbans Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 249 of 1954
Judge
Reported inAIR1957Raj97
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 96 and 115 - Order 7, Rule 11
AppellantMt. Phool Sundri
RespondentGurbans Singh and ors.
Appellant Advocate S.T. Porwal, Adv.
Respondent Advocate L.N. Chhangani, Govt. Adv. for State of Rajasthan
DispositionRevision dismissed
Cases ReferredIn Nand Kumar Sinha v. Pashupati Ghosh
Excerpt:
- .....was no provision in the civil procedure code for rejection of the plaint in part and that if a plaint is rejected in part, revision would lie. it is enough, however, to point out that in that case the only part of the plaint, that was rejected was the part relating to the claim for interest.the plaint remained pending against all the defendants otherwise. it was in those circumstances that it was said that the plaint could not be rejected in part.4. again in l. collins v. charles booth & co., ltd., air 1921 sind 106 (b), it was said that the rule in india does not justify the rejection of a plaint in part. that was, however, an original suit before the judicial commissioner's court of sind & the learned judge held that there was a cause of action with respect to part of the relief.....
Judgment:

Wanciioo, C.J.

1. This is a revision by Mt. Phool Sundri against, the order of the District Judge, Bikaner and arises in the following circumstances. The applicant filed a suit against seven defendants, the last of them being the State of Rajasthan. The applicant claimed Rs. 21,000/- as damages in this suit for false imprisonment and malicious prosecution.

The District Judge framed issues on the 13th of July 1954. On that date, he ordered that the plaint disclosed no cause of action against defendants Nos. 2, 3, 5 and 7. He consequently rejected the plaint as against these defendants. The present revision is against this order rejecting the plaint against four out of seven defendants.

2. A preliminary objection has been taken by the opposite parties and their contention is that the order in question was appealable and as no appeal was filed, this Court should not come to the rescue of the applicant in, revision. We have heard learned counsel on this preliminary point and have come to the conclusionthat however we look at the order of the trial Court, it is appealable.

Under Section 2(2) of the Code of Civil Procedure, a decree includes an order rejecting a plaint and as the rejection of a plaint is a decree, it is naturally appealable under Section 98 of the Code. Learned counsel for the applicant, however, urges that this is not an order rejecting a plaint and his argument is that an order rejecting a plaint contemplated by Order 7, Rule 11 of the Civil Procedure Code is an order by which the plaint is completely rejected and nothing remains before the Court.

He has cited a number of cases where it has been held that plaint can only be rejected in toto under Order 7, Rule 11, Civil P. C. and cannot be rejected in part.

3. In Maqsud Ahmad v. Mathra Datt & Co., AIR 1936 Lah 1021 (A), it was observed that there was no provision in the Civil Procedure Code for rejection of the plaint in part and that if a plaint is rejected in part, revision would lie. It is enough, however, to point out that in that case the only part of the plaint, that was rejected was the part relating to the claim for interest.

The plaint remained pending against all the defendants otherwise. It was in those circumstances that it was said that the plaint could not be rejected in part.

4. Again in L. Collins v. Charles Booth & Co., Ltd., AIR 1921 Sind 106 (B), it was said that the rule in India does not justify the rejection of a plaint in part. That was, however, an original suit before the Judicial Commissioner's Court of Sind & the learned Judge held that there was a cause of action with respect to part of the relief and, therefore, the plaint could not be rejected as to the part about which there did not appear to be a cause of action.

There was no question in that case either of there being no cause of action whatsoever against some of the defendants.

5. Another case to which reference may be-made is Raghubans Puri v. Jyotis Swarupa, ILR 29 All 325 (C). In that case it was held that under Section 54 of the Code of Civil Procedure a Court cannot reject a plaint in part. The facts there also were that the Court rejected the claim in the plaint for an alternative relief. The plaint was not rejected as against a particular defendant.

6. These cases, therefore, show that it is not open to a Court to reject a plaint in part so far as the subject-matter of the plaint or the relief claimed therein is concerned. These eases, however, do not lay down that the whole of the plaint cannot he rejected against some of the defendants against whom the Court thinks that there is no cause of action whatsoever.

7. In Punjab Co-operative Bank Ltd., Lahore v. Ishar Das. AIR 1937 Lah 800 (D), the plaint was rejected against one of the defendants and there was a first appeal to the High Court. It was urged that there could be no appeal to the High Court. The learned Judge remarked that the mere fact that four defendants were included in one suit does not necessarily mean that there could not be rejection of the plaint so far as one of the defendants was concerned.

He, however, did not decide the matter finally and said that even if no appeal lay, a revision would lie and proceeded to dispose of the matter before him. This case shows that it is possible to reject a plaint against some of thedefendants on the ground that it discloses no cause of action against them, and that this would be covered by Order 7, Rule 11 (a).

8. We may also refer to Shankarrao v. Shambihari, ILR (1949) Nag 560 : (A I R 1951 Nag 419) (E). There the learned Judges came to the conclusion that the plaint disclosed no cause of action against one of the defendants. They then considered the question whether the plaint could be rejected against that defendant and were of the view that this could not be done against one defendant only. The learned Judges, however, have not given any reason why this could not be done. They, however, pointed but that the only course feasible in such a case is to discharge the defendant against whom no cause of action is disclosed and have his name struck off from the plaint.

This case also shows that it is possible to reject the plaint against one of the defendants, though the learned Judges thought that the way to do so was to discharge the defendant and strike out his name.

9. We have given our earnest consideration to this matter and we do not see why where a plaint discloses no cause of action against some of the defendants it cannot be rejected against those defendants. We can understandthat a plaint has to be rejected in toto in the sense that a Court cannot reject one part of the plaint against all the defendants and carryon with the rest of the plaint against them, but we cannot understand why the Court cannot reject the entire plaint against a particular defendant and carry on with the entire plaint against others.

In such a case, there is a total rejection of the plaint so far as a particular defendant is concerned. There being such a total rejection of the plaint so far as the particular defendant is concerned, we are of opinion that such an order would be open to appeal as a decree.

10. Assuming, however, that this is not so and that the plaint hag to be rejected in toto in the sense that it must be rejected against all the defendants and there remains nothing before the Court the rejection of the plaint against some defendants would not be an order under Order 7, Rule 11 (a).

The effect of this would be that there would be no rejection of plaint in this case. But then, in our opinion, the plaintiff would be in a worse position. What after all is the effect of the order passed by the trial Court in this case The effect of the order is that the suit of the plaintiff stands dismissed, whatever may be the form of words used by the trial Court so far as those defendants are concerned.

The definition of the word 'decree' under Section 2(2) is that the 'decree' is a 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.

Now, where the Court rejects a plaint against a particular defendant holding that there is no cause of action against that defendant, there is a formal expression of adjudication by that Court and so far as that Court is concerned, that expression of adjudication conclusively determines the rights of the parties, namely that in the view of that Court, the plaintiff has no right to a decree against that defendant.

Such an order, therefore, by which one defendant out of many is either discharged, as suggested in the Nagpur case or the plaint is rejected against such a defendant in effect amounts to a decree, for, it is a conclusive determinationof the rights of the parties so far as that Court is concerned. In this view of the matter also, the order of the Court below would be a decree and an appeal would lie from it to this court.

11. We may in this connection refer to Ganagdhara Ramarao v. Venkata Kumara Mahipati Surya Rao, AIR 1919 Mad 871 (P). In that case an order was passed striking out the defendant from the record on the ground that there was no cause of action against him and dismissing the suit so far as he was concerned.

It was held that such an order amounted to a 'decree' within the meaning of Section 2(2), and was appealable. The order in the present case is couched in different words, but in substance, it is the same, namely that a defendant has been struck out and the suit has been dismissed as against him, (if it is not to be treated, as we think it should be, as a mere rejection of a plaint).

12. In Sher Ali v. Jagmohan Ram, A I R 1931 All 333 (2) (G), it was held that where a cause of action against a defendant is specifically pleaded and a distinct relief has been claimed against him, and the defendant is not impleaded only for the sake of convenience, then an order directing the removal of his name from the array of the parties is in substance, although not in, form, a decree, because the effect of the order is the refusal to grant the relief to plaintiff which he had prayed for.

The proper remedy for the party aggrieved from the order is to file an appeal from it. Whether we call it dismissal of the suit or a refusal to grant relief, the fact remains that so far as that Court is concerned, there is an adjudication which conclusively determines the rights of the parties and the order amounts to a decree,

13. In Nand Kumar Sinha v. Pashupati Ghosh, AIR 1941 Pat 385 (H), it was said that the substance rather than the form of an order should be looked at in determining the provision of law under which it falls. An order striking off the names of those defendants against whom the suit was held not to be maintainable was a decree within the meaning of S, 2 (2) and was appealable as such even though the Court erroneously referred to the order as being one under Order 1, Rule 10.

In that case it was held that the suit could not proceed against certain defendants for various reasons & the names of those defendants were ordered to be struck off. It was urged that the order amounted to a rejection of the plaint against those defendants. Reliance was placed on Clause (d) of Order 7, Rule 11 and was argued that the plaint could be rejected against some of the defendants but not against others.

This point was, however, left open in that case, namely whether the plaint could be rejected against some of the defendants and not against others. The learned Judges, however, were of the view that in any case, the order would amount to a decree and would be appealable.

14. We are, therefore, of opinion that in the first place, we do not see anything in Order 7, Rule 11 (a) or (d) which forbids a Court from rejecting the plaint as a whole against some of them. We are of opinion that it is possible for the Court to reject the entire plaint so far as some of the defendants are concerned and that would be a proper order under Order 7, Rule 11 (a) or (d) and an appeal would lie in view of the definition of 'decree' in Section 2(2).

In any case, we are further of opinion that even if this is not possible, an order by which the suit practically fails against some of the defendants amounts to a decree in favour of those defendants against the plaintiffs within the meaning of that word in Section 2(2), Civil P.C., and an appeal lies.

In any view of the matter, therefore, the order passed in this case was appealable. The plaintiff has not filed an appeal against it. We are, not prepared to grant him the benefit of Section 5 of the Limitation Act and dismiss the revision. In view of the circumstances of this case, we order the parties to bear their own costs of this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //