Punjab Agro Industries Corporation Limited vs Indian Overseas Bank and Another

L.N. Mittal, J.—Plaintiff has filed this revision petition u/s 115 of the CPC (in short, CPC) assailing order dated 18.4.2001 passed by the trial court thereby rejecting plaint filed by the plaintiff petitioner and judgment dated 13.3.2002 passed by the lower appellate court thereby dismissing appeal preferred by the plaintiff against the aforesaid order of the trial court. I have heard counsel for the parties regarding maintainability of the revision petition and perused the case file.

Counsel for the petitioner contended that since no formal decree has been framed by the courts below, the instant revision petition is maintainable. It was also argued that if the revision petition is held to be not maintainable, it may be converted into regular second appeal. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in Nawab Shaqafath Ali Khan and Others Vs. Nawab Imdad Jah Bahadur and Others, .

I have carefully considered the aforesaid contentions which cannot be accepted. Section 2(2) CPC defines ''decree'' to also include rejection of plaint. In the instant case, the plaint was rejected by the trial court. Consequently, order of the trial court rejecting the plaint is included in the definition of decree. In view thereof, contention of counsel for the petitioner that formal decree sheet has not been drawn by the courts below, carries no substance because formal decree sheet was not required to be drawn as the order of the rejection of plaint is itself deemed to be decree. In fact, even the plaintiff-petitioner, assuming the order of the trial court to be decree, filed first appeal because otherwise first appeal against order of the trial court has not been provided under Order 43 CPC. It is thus apparent that the plaintiff had to file regular second appeal and therefore, revision petition is not maintainable.

It is correct as held by Hon''ble Supreme Court in the case of Nawab Shaqafath Ali Khan (supra) that this Court has power to convert the revision petition into second appeal. However, grounds for preferring regular second appeal u/s 100 CPC would be different from the grounds for revision petition u/s 115 CPC and substantial questions of law have also to be framed in regular second appeal in compliance with section 100 CPC although there is no such requirement in the case of revision petition filed u/s 115 CPC. Accordingly, prayer of counsel for the petitioner for converting the instant revision petition into regular second appeal also can not be accepted.

Resultantly, without going into merits of the case, the instant revision petition is dismissed as not maintainable with liberty to the petitioner to file regular second appeal. Interim direction if any issued in the revision petition shall remain in force for one more month from today to enable the petitioner to file regular second appeal and to obtain appropriate order.