P.K. Ramasamy vs Vasumathy and Others

Honourable Mr. Justice G. Rajasuria

Animadverting upon the order dated 28.01.2011 passed in I.A. No. 278 of 2010 in O.S. No. 199 of 2010 by the learned Subordinate Judge,

Perundurai., this civil revision petition is focussed. At the entertaining stage itself this revision has been heard by this Court.

The learned counsel for the petitioner would detail and delineate the following facts:

The suit O.S. No. 199 of 2010 was filed by the revision petitioner seeking specific performance of the agreement to sell as against the defendants;

whereupon the defendants entered appearance and filed I.A. No. 278 of 2010 under Order VII Rule 11 of CPC for rejecting the plaint. After

hearing both sides, the lower Court rejected the plaint itself.

Being aggrieved by and dissatisfied with the said order of rejection, this revision is focussed.

This Court raised the querry as to how revision would lie when appeal remedy is there. The learned counsel for the petitioner would submit that

only on technical grounds he is challenging the validity of the order passed by the lower Court. Be that as it may, once the appeal remedy is

available, the petitioner has to exhaust the said remedy.

At this juncture, I would like to refer to the definition of the term ''decree'' in CPC.

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.

Unambiguously and unarguably it is found specified therein that even rejection of a plaint under Order 7 Rule 11 of CPC would amount to a

decree. It is quite obvious that under Order 41 of CPC an appeal would lie as against any decree passed by a Court, if no civil miscellaneous

appeal is permitted under Order 43 Rule 1 of CPC. It is axiomatic that under Order 43 Rule 1 of CPC as against the rejection of the plaint, no

CMA could be filed, as such only appeal is the remedy.

In this connection, I would like to fumigate my mind with the decision of the Hon''ble Apex Court reported in Shamsher Singh Vs. Rajinder

Prashad and Others, certain excerpts from it would run thus:

3....Before us a preliminary objection was raised based on the observations of this court in Sri Ratnavaramaraja Vs. Smt. Vimla, that the present

appeal is not competent. In that case this court observed that whether proper court-fee is paid on a plaint is primarily a question between the

plaintiff and the State and that the defendants who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no

right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint....

...In the present case the plaint was rejected under Order 7 Rule 11 of the CPC. Such an order amounts to a decree u/s 2 (2) and there is a right

of appeal open to the plaintiff. Furthermore, in a case in which this court has granted special leave the question whether an appeal lies or not does

not arise. Even otherwise a second appeal would lie u/s 100 of the CPC on the ground that the decision of the 1st appellate court on the

interpretation of Section 7 (iv)(c) is a question of law. There is thus no merit in the preliminary objection.

It is therefore crystal clear that no revision would lie as against rejection of the plaint. Hence, the civil revision petition is dismissed. Registry is

directed to return the certified copies of fair and decreetal order to the petitioner so that he would be able to file regular appeal before the appellate

Court immediately within the limitation period excluding the time taken in the CRP. No costs. Consequently, connected miscellaneous petition is

closed.