Sukhbir vs In time Promoters Pvt. Ltd. and Others

A.N. Jindal, J.—The Petitioner has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 22.1.2011 (Annexure P4) passed by the trial court whereby the application of the Respondents under Order 7 Rule 11 CPC has been allowed and the plaint of the Plaintiff-Petitioner has been rejected.

In view of Section 2(2) of the Code of Civil Procedure, it is only an appeal which is maintainable against the order rejecting the plaint. Section 2(2) of the Code reads as under:

(2) "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.

Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary or partly final;

Thus, no iota of doubt remains in my mind to hold that the order rejecting the plaint is appealable and not revisable.

Faced with the situation, learned Counsel for the Petitioner has sought permission to challenge the orders dated 23.12.2010 and 22.1.2011 by way of filing an appeal.

Since this revision petition is the result of mistaken belief that the impugned order is revisable, as such, this petition is dismissed in limine and the liberty is granted to the Petitioner to challenge the aforesaid orders in an appeal within fifteen days from to-day and in that case, the limitation shall stand condoned.