MAIN POINT
A composite order passed on rejection of plaint for lack of cause of action and dismissal of suit as not maintainable on ground of res judicata is a decree u/s 2(2) CPC. Hence remedy is appeal and not revision.

JUDGMENT :

Kurian, J.

Leave granted.

2. An Interlocutory Application filed in a pending suit for dismissal of the suit on the ground that the same is barred by Res Judicata and that there is no cause of action, was allowed by the trial court before commencement of the trial. The plaintiff filed a revision before the High Court of Judicature at Patna taking the position that no appeal is maintainable as the suit has been dismissed without framing an issue.

3. The High Court, as per the impugned order dated 14.08.2013, took the view that the approach taken by the trial court was not proper; an issue should have been framed on maintainability and the same should have been tried, and thereafter only, the suit could have been dismissed, in case the court upheld the contentions of the defendant/applicant. In that view of the matter, the High Court held that the order passed by the trial court, dismissing the suit, was not appealable and the same was only revisable in exercise of the powers under Section 115 of The Civil Procedure Code, 1908 (hereinafter referred to as ‘Code’). Thus, aggrieved, the defendants are before this Court.

4. Appellants are defendants in Title Suit No. 149 of 2008 before the 1st Sub Judge, Arrah, Bhojpur, in the State of Bihar. The suit was filed for a declaration that the Municipality survey Khatiyan entered in favour of defendant No.1 regarding the land mentioned in Schedule ‘A’ is absolutely wrong and untrue and is not binding the plaintiff.

5. The defendants, by application dated 20.08.2009, prayed for framing a preliminary issue as to “whether the suit is maintainable as barred by Res Judicata and constructive Res Judicata”. According to the appellants, the plaintiff having suffered an order in Title Suit No. 4 of 1971, the present Title Suit was not maintainable. It was also averred in the Application that:

“5. That the survey of Khatiyan has not become final by the Municipality, and the plaintiff has no right to institute any suit against any entry made in it, hence, the present suit is not maintainable.”

6. The defendant/plaintiff filed his objections, and thereafter, the Application was taken up for consideration. After hearing both the sides, the trial court upheld the objection that the suit was barred by the principle of Res Judicata. On cause of action, it was held that:

“It is also clear from the perusal of the plaint that the plaintiff has instituted this suit for declaration of the Municipality Survey Khatiyan as null and void. The photo copy of the survey Khatiyan has been produced with the suit. It is clear from its perusal that this survey Khatiyan has not yet been finally published. Under these circumstances, no relief of declaration can be granted by the Civil Court for declaring the said survey as null and void. The suit can not be filed in the Civil Court prior to final publication of the survey Khatiyan. Thus, it is clear that the plaintiff has no cause of action to institute the present suit.”

And thus, the trial court dismissed the suit … “being barred by the principle of Res Judicata and the lack of cause of action” as per order dated 03.08.2010.

7. The plaintiff challenged the said order in Civil Revision No. 783 of 2010 before the High Court of Judicature at Patna.

8. The High Court, in the impugned order, has taken the view that for dismissal of a suit, framing of issues is necessary whereas for rejection of a plaint, it is not and it can be done at any stage. It was further held that the order rejecting the plaint is appealable but dismissal of a suit, without framing an issue and before trial as not maintainable, is not appealable. To quote:

“In absence of specific issue, the same does not come within the definition of decree and the impugned order finally disposed of the case, so only remedy left in the case is filing revision.”

9. Heard learned Counsel appearing on both sides.

10. Section 2(2) of the Code defines ‘decree’ to mean:

“2) “decree” means the formal expression of an adjudication