M/s. Million Develope vs M/s. Frost Internatio

Biswanath Rath, J.—Heard learned counsel appearing on behalf of the respective parties.

This matter was listed on 12.01.2016 on the request of learned counsel for the opposite parties, the matter was adjourned to 14.01.2016 and

consequently, the matter was listed on 14.01.2016 and on the said date, during course of submission, learned counsel for the opposite parties took

adjournment to go through the decision reported in Vol. 96 (2003) CLT 323 for appropriate response to the Court and the matter was therefore

adjourned to today. Today, at the start of hearing, learned counsel for opposite parties also prayed for adjournment.

In view of the repeated adjournment, this Court is not inclined to grant any further adjournment and the matter is decided only on merit.

In assailing the impugned order passed by the Revisional Authority, learned counsel for the petitioner contended that in a matter for

consideration of an application under Order 7, Rule 11 of C.P.C. on merit, the Revisional Court has a limited jurisdiction to consider the illegality

involved in the impugned order and in the event, it feels that there is material in considering the application under Order 7, Rule 11 in a particular

manner, it has no other option than to remit the matter back to the trial Court for taking up the application under Order 7, Rule 11 for passing a

fresh order. In referring to a decision as reported in 2004 (9) SC 512 learned counsel for the petitioner further submitted that in view of the settled

position of law by the Hon''ble Apex Court, the order passed in an application under Order 7, Rule 11 of C.P.C. refusing to reject a plaint gave

rise a scope for filing an appeal by the party aggrieved.

Therefore, it is contended that the order passed by the trial Court is appealable and there is no scope for the opposite parties for moving a

revision. Further in citing a decision of this Court as reported in Vol.96 (2003) CLT 323, learned counsel for the petitioner contended that even

assuming the position of law settled by this Court that a Revision is maintainable but the position settled in the decision cited (supra), the Revisional

Court cannot itself allow the application under Order 7, Rule 11 of C.P.C. except in the event, it is of the opinion that there remains any merit in

the application to remit the matter back to the original Court for considering the matter afresh.

Learned counsel for the opposite parties on the other hand, contended that in view of the reasons assigned by the Revisional Authority, there is

no infirmity or impropriety in the impugned order leaving no scope for this Court for interfering in the order passed by the Revisional Authority.

Further in referring to the Orissa amendment of the Section 115 of C.P.C., learned counsel for the opposite parties contended that in view of

the amendment brought in the year 2010 and the suit being of the year 2009, the Revision was very much maintainable.

Heard.

Considering the submissions made by the respective parties and on perusal of the decision as reported in 2004 (9) SC 512, this Court finds the

observations of the Apex Court that in view of the provision available at that point of time and further considering the fact that refusal of rejection

of a plaint is in a nature of a preliminary judgment, hence appealable. Looking to the amended provision contained in C.P.C. in the year 2010 in

respect of the Section 115 of C.P.C. and since the decision referred to herein above, being of the year 2004, the same is not applicable to the

present case and this Court finds that the revision at the instance of the opposite parties was very much maintainable.

Be that as it may, now this Court is required to consider the scope of the Revisional Authority in view of the decision rendered by this Court in

Vol. 96 (2003) CLT 323, this Court in similar situation considering the case involved therein in paragraph 7 has come to hold as follows :

Since an order passed in rejecting the claim under Order 7, Rule 11 of the Code for lack of cause of action amounts to a decree, therefore,

such an order is appealable. But where an application under Order 7, Rule 11 is rejected that is not appealable. Under such circumstances,

whenever the Court finds illegality or jurisdictional error committed by the Court below in rejecting application under Order 7, Rule 11 of the

Code, then the revisional court has the jurisdiction under Section 115 to consider the legality and sustainability of such orders because it has the

effect of leading to a consequence for disposal of the suit. In the event a revision is entertained, then in appropriate case the revisional court may

pass appropriate order directing the court below to correctly assess the fact by following the provisions of law, but since the effect of rejection of a

plaint under Order 7, Rule 11 (a) has the force of a decree, the revisional court should not pass an order rejecting a plaint while exercising

jurisdiction under Section 115. The above view gains support from the ratio in the case of Purusottam Das and sons v. S.B. I, Vol. 33 (1991)

OJC 228 (Civil).

Looking to the settled position of law already given by this Court as referred to herein above, this Court finds force in the submission of

learned counsel for the petitioner to the extent that the Revisional Authority has a limited role in the matter of hearing on rejection of an application

under Order 7, Rule 11 of C.P.C. and in the event, it feels that there is some substance in considering the application under Order 7, Rule 11 of

C.P.C., then the Revisional Authority is to remit the matter back to the Original Authority for fresh consideration of the matter.

Considering the submissions made by the respective parties and looking to the settled position by this Court in a decision as reported (supra),

this Court is of the view that the Revisional Court while considering the revision has exceeded its jurisdiction and therefore, while interfering in the

revisional order, this Court sets-aside the same and directs the Revisional Authority to take a decision thereon afresh taking into consideration the

observation of this Court as well as the decision reported in Vol. 96 (2003) CLT 323. Revisional Court is directed to take up the Revision and

dispose the same afresh and a fresh order be passed without being influenced with the observations already made in the impugned order.

In view of disposal of the writ petition, interim order passed earlier stands vacated and all the pending Misc. Cases arising out of this petition

stand dismissed accordingly.