Kan Singh vs Mishri Devi and Others

Arun Bhansali, J.—This writ petition is directed against the order dated 18.07.2014 passed by the trial court, whereby while allowing the application filed by the defendant under Order VII, Rule 11 CPC, the plaint filed by the petitioner has been rejected.

The petitioner filed a suit for permanent injunction and declaration.

An application was filed by the defendant under Order VII, Rule 11 CPC, inter alia, questioning the valuation of the suit, consequent jurisdiction of the court and the court-fees paid by the petitioner.

After reply was filed by the petitioner, the trial court vide the order impugned allowed the application and rejected the plaint.

When a query was made regarding the maintainability of the writ petition against rejection of the plaint, counsel for the petitioner submitted that in view of the nature of order passed by the trial court, whereby even if the plea raised by the defendant was accepted by the trial court either the plaint could have been returned under Order VII, Rule 10 CPC or time for payment of court-fees should have been granted by the trial court and only on failure to pay the court-fees after direction that provisions of Order VII, Rule 11(c) CPC could have been invoked and as there is error apparent in the exercise of jurisdiction of the trial court, the writ petition under Article 227 of the Constitution of India is maintainable.

I have considered the submissions made by learned counsel for the petitioner.

A ''decree'' has been defined under Section 2(2) CPC, which reads as under:--

"2. Definitions. - In this Act, unless there is anything repugnant in the subject or context, -

(1)..............

(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."

(Emphasis Supplied)

From a bare reading of the definition, it is clear that the definition of ''decree'' deems to include rejection of plaint also and under Section 96 CPC, appeal lies from every decree passed by any court exercising original jurisdiction.

In view of the express provisions of Section 2(2) and Section 96 CPC, the order dated 18.07.2014 passed by the trial court is appealable before the appellate court, which in the present case would be the court of District Judge, Pali.

So far as submissions of learned counsel for the petitioner that in view of the fact that the trial court has allegedly failed to exercise its jurisdiction under Order VII, Rule 10 and Order VII, Rule 11(c) CPC, the writ petition should be entertained, suffice it to say that the merit of order passed cannot determine the jurisdiction of the court and it is the nature of order passed i.e. whether it is a decree or order, which determines the jurisdiction.

In view of the above, the writ petition filed by the petitioner is not maintainable in view of the availability of alternative remedy by way of first appeal under Section 96 CPC and, therefore, the same is dismissed.

Learned counsel for the petitioner submits that the appellate court may be directed to sympathetically consider the issue of limitation if an appeal is filed, suffice it to say that the provisions of Section 5 and 14 of the Limitation Act, 1963 takes care of the present situation and no specific order in this regard needs to be passed.