M/S Narang Sale Corp And ORS v. Bank Of Baroda And ORS
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At the time of hearing, the learned counsel for the respondents/defendants raised a preliminary objection as to the maintainability of the Civil Revision Petition. The learned counsel contended, as against the order of rejection of a plaint, appeal only lies and that being so, this revision petition is liable to be dismissed. Per contra, the learned counsel for the petitioner would submit that the Courts have held that a Civil revision petition is also maintainable and that there is no substance in the preliminary objection as put forward by the learned counsel for the respondents. In the event of this Court coming to the conclusion that the preliminary objection raised by the respondents is sustainable then it will be a futile exercise to refer to and consider the other points raised. In this view of the matter, this Court desires to consider that issue first, before considering the other issues that arises for consideration.
9. Order 7 Rule 11 of Code of Civil Procedure deals with rejection of plaint. Once the plaint is rejected, then obviously nothing is pending before the Court. That order is formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties. In fact, Section 2 of the Code of Civil Procedure which defines the term decree specifically states that the decree shall be deemed to include rejection of the plaint. Section 96 of the Code deals with appeal from original decrees. The claim of the respondents is that the order rejecting plaint being the decree by the trial Court, the only remedy, if plaintiff is aggrieved, is by way of filing an appeal and not by filing revision petition.
10. The learned counsel would place strong reliance on the ruling of the Full Bench of this Court reported in AIR 1952
Madras 86 (Satyanarayanacharyulu v. Ramalingam)(FB). In that case, the petitioners filed a suit in the Subordinate Court for declaration and for other reliefs and paid a fixed Court fee of Rs.100/3 under Sec.173A of Schedule II, Court Fees Act valuing the suit for the purposes of jurisdiction at Rs.3,600/3. The question arose was whether the Court fee paid has been correct and after considering the objection the Subordinate Judge came to the conclusion that the suit has been grossly under valued and directed the petitioner/plaintiff to pay an additional Court fee of Rs.400/3. The order directing payment of additional Court fee was made on 14.3.1947 and a period ten days time was given for payment of the deficit court fee. The suit was adjourned to 24.3.1947 and by that time, as the deficit court fee was not paid as per the order dated 14.
3.1947, the plaint was rejected. A revision was filed against the order dated 24.3.1947. The Full Bench approving the view taken in an earlier ruling reported in 1942 (1) MLJ 569 (Ratnavelu Pillai v. Varadaraja Pillai), ruled that if the order directing payment of additional Court fee was not complied with and it was followed by an order dismissing the suit, a revision would not be maintainable and the remedy is only by way of an appeal against the decree. Or in other words, the Court ruled that once a plaint is rejected, the remedy for the plaintiff is only to file an appeal and not a revision petition. A learned single Judge of this Court had occasion to consider a similar question and after considering the ruling of the Full Bench referred supra as well as other rulings viz., AIR 1924 Oudh 413 (Harihar Bakhsh Singh v.
Jagannath Singh); AIR 1956 Hyderabad 133 (Radhakishen v. Wali Mohammed); and AIR 1957 Pepsu 14 (Badri Nath v. State of Pepsu), clearly ruled that both from the section and those decisions it is clear that only appeal will lie against rejection of plaint and it is not limited to such cases wherein the plaint was rejected for the reasons stated under Order 7, Rule 11 of Code of Civil Procedure.
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165 : (1999 AIHC 470) (Nesammal v. Edward) a learned single Judge referred extensively the various rulings including AIR 1976 Madras 289 (R.Shanmughavelu Pillai v. R.Karuppannan Ambalam) and concurred with it.
11. Thus, the legal position from the above rulings is that as against the order rejecting the plaint, only an appeal lies and not a revision.
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Mr. Ankush Verma, Advocate for the petitioner )* +*,,* - For the reasons stated in the application, the same is allowed and, with the consent of the learned counsel, the main case is taken on Board today itself.
*
* - Learned counsel for the petitioner would contend that the Trial Court while allowing the application under Order 7 Rule 11 CPC has instead of confining itself to the contents of the plaint has considered the averments made in the application under Order 7 Rule 11 which is against the law.
Notice of motion returnable 24.08.2023.
Meanwhile, operation of the impugned order shall remain stayed.
03.02.2023"
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