Board Of Trustees, Kolkata Port Trust vs Radhya Shyam Gond And Others

Let the affidavit of service filed in Court today be kept on record.

Service on the proforma opposite parties is dispensed with since they are only proper parties to the present revisional application.

The present challenge is directed against an order whereby the first appellate court reversed the order of rejection of plaint passed by the trial court and rejected the application filed by the petitioner under Order VII Rule 11 of the Code of Civil Procedure.

A preliminary objection as to the maintainability of this revisional application is taken on behalf of the contesting opposite party nos.1 and 2. By citing two judgments, reported respectively at AIR 1973 SC 2384 (Shamsher Singh Vs. Rajinder Prashad and others) and AIR 2012 SC 3023 (Bhau Ram Vs. Janak Singh and others), learned counsel for the opposite party nos.1 and 2 submits that an appeal lay against the impugned order, since the same arose from a Title Appeal, which in turn was preferred against the rejection of a plaint, which is a decree as per the definition in Civil Procedure Code.

Such preliminary objection is controverted on behalf of the petitioner.

Section 2(2) defines a decree and includes within the fold of such definition the rejection of a plaint. Hence, the provisions of appeal as stipulated in the Civil Procedure Code obviously apply in respect of rejection of plaint as well. Order VII Rule 11 of the Code of Civil Procedure, on the other hand, provides the situations where a plaint shall be rejected.

In the present case, the trial court rejected the plaint, which was a decree in terms of Section 2 of the Code of Civil Procedure and as such appellable under Section 96 of the Code of Civil Procedure.

If the argument of the opposite party nos.1 and 2 were to be accepted, an appeal would also lie against a decision passed in Title Appeal, which was not a decree but only an order passed in an appeal. This is so because Section 2(2) categorically enumerates only the rejection of a plaint to be a decree. The refusal to reject a plaint is not a decree under Section 2 or any other provision of law. A glance at Section 11 of the Code of Civil Procedure reveals that an appeal shall lie to the High Court from every 'decree' passed in appeal by any court subordinate to the High Court.

There are several instances when an appeal may not culminate in a decree but may reach fruition in an order. One such example is an order of remand passed in a Title Appeal against a regular decree of the trial court.

In the event the appellate court passes such an order, the same is not appellable, since the appeal does not culminate in a decree.

The expression 'decree' as contemplated in Section 100 of the Code has to mean a decree as defined in Section 2 of the Code of Civil Procedure. Since a refusal to reject a plaint is not a decree under Section 2 of the Code, the order impugned herein, being that of refusal to reject a plaint, is also not appellable as a decree.

Since the decision impugned in the present revision was an order, although passed in a Title Appeal, no appeal lies against the same. As appeals are creatures of statute and since Section 100 specifies that a second appeal lies only against a decree passed in an appeal, no appeal was maintainable against the present impugned order. Hence, the petitioner was justified in preferring this application under Article 227 of the Constitution of India, although in the strict sense of the term, an application under Section 115 of the Code could also be preferred as it could be argued that the impugned order, if it went in favour of the petitioner, would have finally decided the suit or proceeding. However, such technicalities need not deter the court, since it has been the established practice of this High Court to treat applications under Article 227 of the Constitution of India against orders from courts to be within the domain of the civil revisional jurisdiction, as opposed to certain other High Courts which categorize those under the writ jurisdiction. Hence, in the present context, it could be interpreted that the revisional jurisdiction of this Court has been invoked, it being immaterial whether under Article 227 of the Constitution of India or Section 115 of the Code of Civil Procedure.

As regards the first judgment cited on behalf of the contesting opposite party nos.1 and 2, reported at AIR 1973 SC 2384, the same was rendered in respect of a dispute arising from a preliminary objection that the appeal therein was not competent. However, such challenge to the competence was on the premise that the question as to whether proper court-fee was paid on a plaint was primarily a question between the plaintiffs and the State and the defendants had no right to move the superior courts by way of appeal or revision against such order. While dealing with such question, the Supreme Court made certain observations as regards the revisional jurisdiction of High Courts under Section 115 of the Code of Civil Procedure as well as the provisions of second appeal under Section 100 of the Code of Civil Procedure. However, the Supreme Court in the said case did not decide, or even render any finding in the nature of obiter dictum, pertaining to the question which has arisen in the present case. As such, the said judgment cannot be a binding precedent on the proposition at issue herein.

As regards the second judgment reported at AIR 2012 SC 3023, the questions which arose therein were entirely different from the present context. In the said case, the dictum revolved around whether an application under Order VII Rule 11 of the Code of Civil Procedure was to be decided on the basis of the plaint and/or other materials. Such a question did not even incidentally pertain to the present issue. Although it may be rightly submitted that in the said case an appeal had been preferred in similar circumstances, but none of the parties urged the question of maintainability of such appeal nor was the Supreme Court called upon to decide any question even incidentally touching such issue. As such, the second cited judgment is also not a precedent for the present case.

In view of the above discussions, the present revision is held to be maintainable, and the objection as to its maintainability, taken by the opposite party nos.1 and 2, is turned down.

Addressing the revisional application on merits, learned counsel for the petitioner argues that the present opposite party nos.1 and 2, who are the plaintiffs in the suit-in-question, were impleaded as parties in a proceeding under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which ended in a decree of eviction being passed, also against the present opposite party nos.1 and 2. The remedy of an appeal under Section 9 of the 1971 Act was available to the opposite party nos.1 and 2 but they chose not to prefer such appeal but to pursue the present suit. It is argued that in view of Section 15 of 1971 Act, the civil court does not have the jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises. Since the reliefs in the present suit pertain to a declaration as to the petitioner not being entitled to evict the plaintiff nos.1 and 2 without compliance of the mandatory provisions of the 1971 Act and a permanent injunction restraining the petitioner from so evicting the plaintiffs, the bar of Section 15 of 1971 Act squarely applies. Hence, the plaint should have been rejected on such ground.

This apart, it is argued that the plaint does not contain any averment as to compliance of Section 120 of the Major Port Trust Act, 1963. The said provision specifically provides that no suit or other proceeding shall be commenced against a Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board stating the cause of action, or before six months after the accrual of the cause of action.

Accordingly, it is submitted that the plaint ought to have been rejected on such two-fold grounds by the appellate court.

Learned counsel for the opposite party nos.1 and 2 submits on merits that the plaint did not disclose any proceeding pertaining to the 1971 Act, for the simple reason that the said proceeding was initiated much later than institution of the suit in 2013. As such, although this might be an issue in suit, the question of not taking recourse to Section 9 of the 1971 Act or the applicability of Section 15 of the 1971 Act cannot be decided at the stage of Order VII Rule 11 of the Code. Accordingly, it is submitted that the appellate court was justified in refusing, on a plain and meaningful reading of the plaint, to reject the same.

It is further argued that Section 120 of the 1963 Act only co purporting to have been done in pursuance of the said Act. The closest argument to the applicability of the said Act could be in respect of Section 130 of the said Act. However, Section 130 ex facie pertains to allotment of premises by virtue of the powers conferred on the Board by regulations made under the 1963 Act and envisages eviction proceedings against such allottees or persons in occupation of the premises in the said context. Since the proceeding under the 1971 Act, in which the opposite party nos.1 and 2 were impleaded, were not proceedings under the Major Port Trust Act, 1963 but under the 1971 Act, Section 120 of the 1963 Act was not applicable at all. As such, the appellate court was justified in refusing to reject the plaint on such score as well. By relying on a Division Bench judgment of this Court reported at (2015) 1 CHN 309 (Madan Lal Aggarwal Vs. The Board of Trustees of the Port of Calcutta), learned counsel for the opposite party nos. 1 and 2 reiterates his argument that the provisions of Section 120 of the Major Port Trust Act, 1963 do not apply to the present case, since the instant case does not pertain to anything done under the said Act.

Upon considering the submissions of both sides, it is evident that the plaint itself does not disclose anything about the subsequent institution of a proceeding under Section 5 of the 1971 Act. Even if there was some point in the submission of the petitioner that the opposite party nos.1 and 2 could have taken recourse to Section 9 of the 1971 Act since they were parties to the proceeding under Section 5 of the said Act, the same could not be taken as a ground for rejection of the plaint. Not only was the order passed under Section 5 of the 1971 Act a subsequent development to the institution of the suit, the same was not pleaded in the plaint and could not be a subject-matter of the adjudication under Order VII Rule 11 of the Code of Civil Procedure. Such question could at best be raised as an issue in the suit and if raised, could be decided by the trial court with the other issues at the time of hearing.

As far as the bar of Section 120 of the Major Port Trust Act, 1963 is concerned, the opposite party nos.1 and 2 are correct in submitting that the said provision is not applicable in the present circumstance at all, since there was no action taken under the 1963 Act which was challenged in the suit, in order to attract Section 120 of the said Act.

As such, the appellate court was justified in reversing the trial court's rejection of plaint and refusing the prayer of the petitioner under Order VII Rule 11 of the Code of Civil Procedure.

Accordingly, C.O. No.3938 of 2018 is dismissed without any order as to costs.

It is made clear that any observation made herein or in the impugned order will not influence the trial court at the time of final hearing of the suit. The trial court will proceed upon framing issues including the question of maintainability as canvassed by the present petitioner, if raised in the written statement, and dispose of Title Suit No.190 of 2013 as expeditiously as the business of the said court permits.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.