Raj Kumar vs Maha Singh Alias Mahesh and Others

L.N. Mittal, J.—Raj Kumar petitioner has filed suit against Chajjan Singh as defendant no. 1 and against respondents no. 2 to 6 as defendants no. 2 to 6. However, Chajjan Singh had died even before filing of the suit. Plaintiff moved application in the trial court for impleading respondent no. 1 Maha Singh alias Mahesh son of Chajjan Singh as legal representative (LR) of defendant no. 1 Chajjan Singh. On the other hand, respondent no. 1 moved application under Order 7 Rule 11 of the CPC (in short, CPC) for rejection of plaint. Learned trial court vide order dated 7.2.2011 Annexure P/1 has dismissed application of plaintiff for impleading LR of defendant no. 1 and has allowed application of respondent no. 1 and has rejected plaint qua defendant no. 1. Feeling aggrieved, the plaintiff has filed this revision petition under Article 227 of the Constitution of India to assail the said order. I have heard counsel for the parties and perused the case file.

Counsel for respondent no. 1 contended that impugned order is appealable and therefore, the instant revision petition is not maintainable.

Counsel for the petitioner on the other hand contended that respondent no. 1 having not been impleaded as party to the suit could not have filed application under Order 7 Rule 11 CPC and therefore, the impugned order is without jurisdiction and consequently, the revision petition against the same is maintainable. It was also pointed out that by the same order, the trial court also dismissed plaintiffs application for impleading LR of defendant no. 1 and for this reason also, the instant revision petition is maintainable.

I have carefully considered the matter. According to section 2(2) CPC, decree also includes rejection of plaint. Consequently, impugned order rejecting plaint qua defendant no. 1 falls within the definition of decree and therefore, the same is appealable u/s 96 CPC. The contention that the impugned order is without jurisdiction can be raised in the appeal and merely on the basis of this contention, revision petition cannot be held to be maintainable when the order is appealable.

As regards contention of counsel for the petitioner that revision petition would be maintainable qua dismissal of plaintiffs application for impleading LR of defendant no. 1, suffice to mention that any interim or interlocutory order passed by the trial court is also appealable in appeal against final decree, in view of section 105 CPC. Consequently, the petitioner is at liberty to assail the impugned order regarding dismissal of plaintiffs application for impleading LR of defendant no. 1, in the appeal to be filed against impugned order regarding rejection of plaint against defendant no. 1. For the reasons aforesaid, I find that the instant revision petition is not maintainable because the impugned order rejecting plaint against defendant no. 1 is appealable because the same falls within the definition of decree. The revision petition is, therefore, dismissed as not maintainable without entering into merits of the case.