R. Shanmughavelu Pillai vs R. Karuppannan Ambalam

Gokulakrishnan, J.—The plaintiff in an unfilled plaint No. -/74 (A. 2394/74) on the file of the District Munsif of Madurai Taluk at Madurai

has preferred the above revision petition against an order rejecting the plaint on 9th April 1974.

The petitioner herein as plaintiff claimed damages for Rs. 2,250 for three crops from the suit land for the period from 15-7-1972 to 15-9-1973.

The suit land was also the subject-matter of the suit in O.S. No. 358 of 1972 on the file of the District Munsif, Madurai Taluk at Madurai. It was a

suit for permanent injunction against the defendant. The plaintiff obtained interim injunction on 24-7-1972, and the order was served on the

defendant on 26-7-1972. After full trial, the suit in O.S. No. 358 of 1972 was decreed ordering permanent injunction against the defendant. The

plaintiff has pleaded in that suit that he was in possession of the suit lands on the date of the filing of the suit and the decree was passed on 29-9-

1973. It is for the same period the plaintiff in the unnumbered suit claimed damages as stated above. It was alleged by the plaintiff that the

defendant has been restrained from entering into the suit land from 24-7-1972 to 29-9-1973. The defendant obstructed the plaintiff from enjoying

the suit land. The trial court observing that the plaintiff never complained that he was dispossessed by the defendant for the relevant period that

inasmuch as the plaintiff has been in possession of the suit property from the date of taking delivery, the suit for damages for three crops is not

maintainable, and that the plaintiff cannot claim damages by way of manse profits from the defendant against whom a decree for permanent

injunction was in force during the relevant period held the plaint is not maintainable. On these grounds the trial court rejected the plaint ordering the

court-fee paid on the plaint be refunded.

Aggrieved by the said order of the Court below, the plaintiff has preferred the above Civil Revision Petition. Prima facie it looks that the order

of rejection upon a suit for damages on the ground stated by the trial court is erroneous. Nevertheless the matter has to be discussed and decided

upon proper evidence and arguments by the respective parties before the appropriate forum. Mr. Venkataraman the learned counsel appearing for

the defendant (respondent herein) took up an objection that the revision is not maintainable. According to the learned counsel, u/s 2 (2) C.P.C. the

decree will include the rejection of a plaint. The rejection of the plaint which is being questioned in this revision petition is construed as a decree,

and only an appeal has to be filed and not a revision.

Mr. Velusamy the learned counsel appearing for the petitioner submitted that the High Court under the powers vested in it in Section 115, Civil

P.C. can always correct the errors committed by the trial court. The learned counsel also submitted that this court having entertained the revision

petition, has ample jurisdiction to revise the order made by the trial court The learned counsel further contended that no appeal will lie to the High

Court and as such there is no bar for this court to entertain the revision petition u/s 115 of the Civil P.C.

Number of decisions were cited by both sides for their respective contentions. In Major S.S. Khanna Vs. Brig. F.J. Dillon, the Supreme Court

has specifically held that no revision will lie to the High Court. The Supreme Court interpreting Section 115 of the Civil P.C. has held that no

revision will lie to the High Court in case where an appeal will lie to the High Court directly or indirectly. This decision was followed by many

judgments of our High Court, including myself in C. R. P. S. R. No. 51709 of 1972 dated 31st October 1974. Reported in (1975) 2 Mad LJ 17

As far as the case on hand is concerned, the damages sought to be recovered are more than Rs. 2,000 and as such a second appeal will definitely

lie to the High Court.

The next contention raised by Mr. Velusamy is that the rejection of the plaint is not for any of the grounds provided under Order 7, Rule 11 of

the Civil P.C. If there is any rejection under this Order 7, Rule 11, then only the rejection will be construed as one coming under the definition of

the decree contemplated u/s 2 (2) of the Civil P.C. For this proposition, Mr. Velusamy cited Pt. Amba Shankar Vs. Mt. Seoti, A single Judge of

the Allahabad High Court has held that the rejection of the plaint made for the reasons stated under Order 7, Rule 11, C.P.C. only will, come

under the definition of the decree under S. 2(2) , C.P.C. The other cases cited by Mr. Velusamy such as C. R. R. Nos. 1853 of 1970 and 2542

of 1970 (Mad) cannot be taken as an authority since those decisions followed the decision in Munusamy Mudaliar Vs. Chengalvaraya Naicker

and Others, which is not an authority for this proposition. Munusamy Mudaliar Vs. Chengalvaraya Naicker and Others, is a case filed against an

order refusing to review the judgment passed by the trial court. There is no difficulty in entertaining a civil revision petition against an order refusing

to review the judgment of the court below. The present case on hand is not one like that. In Seshadri v. Krishnaiah ( 1936 Mad WN 448), Civil

revision petition was entertained by this court, but the question as to whether a Civil revision petition will lie or an appeal will lie against an order

rejecting the plaint has not been discussed at all in this case. In Vaishnav College for Women v. Mrs. Alleyamma Thommas (1971-1 Mad LJ 76)

Ramanujam, J., has held that a revision is maintainable. That is not a case filed against a rejection of the plaint. Apart from that fact, that is a case in

which no appeal will lie either directly or indirectly to the High Court. Chinna Pillai Vs. N. Govindaswami Naidu and Another, is a case arising u/s

9 of the Specific Relief Act, wherein Ramaprasada Rao, J. has stated that in the interest of justice High Courts have ample power to interfere with

the orders passed u/s 9 of the Specific Relief Act u/s 115, Civil Procedure Code. Even the decision reported in Katam Virupakshiah and Others

Vs. Matam Sivalingaiah and Others, is not a case arising out of an order rejecting the plaint. But in any event, it does not support the case of the

petitioner herein. Thus it is clear from the above said decisions, except the decision reported in Pt. Amba Shankar Vs. Mt. Seoti, the question as to

whether a revision will lie or an appeal from an order rejecting the plaint has not been discussed at all.

Mr. Venkataraman, the counsel appearing for the respondent cited Paruchuru Thirumala Satyanarayanacharyulu and Another Vs. Vannava

Ramalingam and Others, wherein it has been held:

Where an order directing payment of additional court-fee in a suit is not complied with and it is followed by an order rejecting the plaint, a revision

against the later order would not be maintainable and the proper remedy is only by way of an appeal against the decree.

Another case cited by Mr. Venkataraman is Harihar Bakhsh Singh v. Jagannath Singh (AIR 1924 Oudh 413). A Bench of the Oudh Court has

held:

On behalf of the appellant it is contended that the only grounds on which a court is authorised to reject a plaint are those given in Order 7, Rule 11

of the Civil P.C. and that the Subordinate Judge had no jurisdiction to reject this plaint on the grounds taken by him. With this contention we are

not disposed to agree. The instances given in the rule referred to cannot be regarded as exhaustive or as limiting the powers of a court u/s 151 of

the same Code. We concur in the view taken by the Madras High Court in Lakshmanam Chetty v. Lakshmanam Chettiar, (1914) 1 Mad LW 875

= 25 Ind Cas 738 = (AIR 1915 Mad 483) that a Court has jurisdiction in a proper case to dismiss a suit filed by the next friend of a minor on the

ground that it is not in the interests of the minor that the suit should be allowed to go on. The cases quoted in that ruling from ""Simpson on the Law

of Infants"" (pp. 471 to 473) show that this is also the law in England.

The next case cited by Mr. Venkataraman is Radhakishen v. Wali Md. (AIR 1956 Hyd 133), wherein also a Bench of the Hyderabad High Court

has held that:-

The instances given in Order 7, Rule 11 cannot be regarded as exhaustive of all the cases in which a court can reject a plaint or as limiting the

inherent powers of the court in respect thereof.

For the proposition that against the rejection of the plaint, only appeal lies, has been made clear in the decision reported in Lakshmanam v.

Lakshmanam (AIR 1915 Mad 483) and in Badri Nath v. State of Pepsu (AIR 1957 Pepsu 14). Even reading Section 2 (2), C.P.C. it does not

say the rejection of the plaint under Order 7, Rule 11, C.P.C. on the other hand, it generally states that decree will include rejection of plaint. Thus

it is clear both from the section and also the decisions cited above that only appeal will lie against the rejection of the plaint and it is not limited to

such cases wherein the plaint was rejected for the reasons stated under Order 7, Rule 11, C.P.C.

Thus it is clear that the order in question now is rejection of the plaint even though it cannot be construed as one coming under the reasons

stated under Order 7, Rule 11, C.P.C. Nevertheless the remedy, if any, for the petitioner herein can only be by way of an appeal and not by a

revision to this Court. When there is a specific remedy provided and no harm will be caused to the petitioner herein by directing him to file an

appeal instead of a revision in this court, I am of the view that this revision petition has to be dismissed as not maintainable.

Mr. Veluswamy submits that the time will be against him if he goes by way of an appeal against the order rejecting the plaint. He can prefer an

appeal with a petition to excuse the delay and I am sure any court will take into account the time taken by the petitioner in litigating the matter

before a wrong court, in calculating the period of limitation and excusing the delay occurred.

In these circumstances, this Civil Revision Petition is dismissed as not maintainable. There will be no order as to costs.