Arun Kumar vs N. Nirmala Devi and Others

S.K. Mishra, J.—In this writ petition, the petitioner being the plaintiff in Title Suit No. 6 of 2004 of the court of Civil Judge (Senior Division), Rayagada has assailed the order dated 30.04.2013 passed by the said court in the aforesaid suit rejecting the plaint filed by the plaintiff in exercising jurisdiction under Order VII, Rule 11 read with Order II, Rule 2 of the Code of Civil Procedure, 1908, hereinafter referred as the "Code" for brevity. The facts of the case are not disputed. The plaintiff filed Civil Suit No. 26 of 2003 in the court of the Civil Judge (Senior Division), Rayagada. The plaint was returned to the plaintiff on 26.03.2004. Thereafter, on the selfsame cause of action the suit, out of which the present writ petition arises, is filed. It is submitted by the learned counsel for the petitioner that the plaintiff has withdrawn the earlier suit under Order XXIII, Rule 1 of the Code with liberty to file a fresh suit thereof. The defendants after appearance filed an application under Order VII, Rule 11 read with Order II, Rule 2 of the Code. That petition was allowed and the plaint was rejected as the plaintiff is precluded from instituting the present suit.

Mr. C. Ananda Rao, learned Senior Advocate appearing for the opposite parties urged before the Court that the order impugned is a decree in view of the definition given in Sub-section (2) of Section 2 of the Code and therefore, the writ application is not maintainable and the appeal is maintainable.

Sub-Section (2) of Section 2 of the Code defines the ''decree'' as follows:

(2) "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 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.

In interpreting this provision, this Court in Satyabadi Hota Vs. Jagannath Misra, has held that an order rejecting a plaint on whatever ground, is a decree, as defined u/s 2(2) of the Code and is appealable. This being the case, since alternative and efficacious remedy is available to the petitioner, the present writ application is not maintainable.

Hence the writ application is dismissed as not maintainable. However, the petitioner may pursue the forum of appeal, if so advised. Pending Misc. Case No. 10993 of 2013 is also disposed of.