2022 Supreme(SC) 259

SUPREME COURT OF INDIA
(From the High Court of Orissa at Cuttack)
M.R. Shah, B.V. Nagarathna, JJ.
M/s Frost International Limited – Appellant
Versus
M/s Milan Developers and Builders (P) Limited and Anr. – Respondents
Civil Appeal No.1689 of 2022
Decided On : 01-04-2022

IMPORTANT POINTS
(1) Rejection of plaint – No plaintiff can be permitted to seek relief in a suit which would frustrate defendants from initiating a prosecution against plaintiff or seeking any other remedy available in law.
(2) Rejection of a plaint is a decree within meaning of Section 2(2) of CPC and an appeal lies from every decree passed by any court exercising original jurisdiction to Court authorised to hear appeals from a decision of such court.

Headnote:

(A) Civil Procedure Code, 1908 – Section 115 (Orissa Amendment) – Revision – First proviso to main Section 115 of CPC restricts revisional power of High Court inasmuch as a revision is maintainable only if it is filed by a party who is aggrieved by an order passed by court subordinate to High Court on an order deciding an issue which, had it been made in favour of party applying for revision, would have finally disposed of suit or other proceeding – But as per second proviso to Section 115 of CPC (Orissa amendment), High Court or District Court, as the case may be, under said Section can vary or reverse any order including an order deciding an issue, made in course of a suit or other proceeding only if order if so varied or reversed would finally dispose of suit or other proceeding or order if allowed to stand would occasion a failure of justice or cause irreparable injury to party against whom it was made – Under Orissa amendment to Section 115 of CPC, express power is conferred on High Court or District Court, as the case may be, being revisional courts, to vary or reverse an order of court subordinate thereto only when it would finally dispose of suit or other proceedings or if impugned order is allowed to stand would occasion a failure of justice or cause irreparable injury to party against whom it was made. (Para 18)

(B) Civil Procedure Code, 1908 – Order VII Rule 11 and Section 115 – Rejection of plaint – Recovery suit – High Court was not right in observing that revisional court had exceeded its jurisdiction and it could not have allowed application filed under Order VII Rule 11 of CPC and thereby reversed order of trial court and finally disposed of suit – High Court has failed to appreciate second proviso to Section 115 of CPC (Orissa amendment) in its true perspective – Revisional court, being High Court or District Court, as the case may be, can reverse an order which would finally dispose of suit or other proceeding – High Court was not justified in setting aside said order and remanding the matter to revisional court (District Court) to consider afresh, application filed by defendant no.1/appellant herein under Order VII Rule 11 of CPC seeking rejection of plaint – Exercise of jurisdiction by revisional court in instant case is in accordance with second proviso to Section 115 of CPC (Orissa amendment) – Rejection of a plaint is a decree within meaning of Section 2(2) of CPC and an appeal lies from every decree passed by any court exercising original jurisdiction to Court authorised to hear appeals from a decision of such court – However, when a revisional court rejects a plaint, in substance, application filed under Order VII Rule 11 is being allowed – Under such circumstances, remedy by way of a writ petition under Article 227 of Constitution could be availed and respondent no.1/plaintiff has resorted to said remedy in instant case; although if plaint had been rejected by trial court i.e. court of original jurisdiction, it would have resulted in a right of appeal under Section 96 of CPC. (Paras 21, 22 and 23)

(C) Specific Relief Act, 1963 – Sections 34 and 41(b) & (d) – Civil Procedure Code, 1908 – Order VII Rule 11 – Negotiable Instruments Act, 1881 – Sections 138 and 118(a) – Rejection of plaint – No plaintiff can be permitted to seek relief in a suit which would frustrate defendants from initiating a prosecution against plaintiff or seeking any other remedy available in law – Attempt made by plaintiff to seek such a declaratory relief is, in substance, to seek a relief of injunction against defendants, particularly defendant no.1, but framed it in nature of a declaratory relief – Plaintiff has sought injunction against defendant no.1 from seeking remedies in law on account of cheque issued by plaintiff for a sum of Rs. 56 lakhs being dishonoured – Plaintiff cannot seek declaratory reliefs to the effect that plaintiff was not liable to carry out his obligation under terms of MoU – If plaintiff has failed to do so then defendant no.1 would have a cause of action against plaintiff, but there cannot be a frustration of right to seek a remedy in law by means of seeking declaration under a contract or MoU – Right of defendant no.1 to prosecute plaintiff owing to dishonour of cheque issued by plaintiff for a sum of Rs. 56 lakhs cannot be frustrated by seeking a declaration that cheque was handed over as a security – Such a declaration cannot be ex facie granted as it would be contrary to provisions of the N.I. Act and particularly Section 118(a) thereof – Whether plaintiff was not liable to issue cheque for Rs. 56 lakhs to defendant no.1 under terms of MoU is a matter which has to be considered in an appropriate proceeding to be initiated by defendants on account of dishonour of cheque under Section 138 of N.I. Act – Impugned Order of High Court set aside and Order of Revisional Court passed restored and plaint rejected. (Paras 35, 36, 37, 38 and 39)

Facts of the case:

Present appeal is preferred by defendant no.1 in C.S. No.1065 of 2009 filed before the Court of Civil Judge (Senior Division) Bhubaneswar, by assailing order dated 19th January, 2016 passed by the High Court of Orissa at Cuttack in WP(C) No.7059 of 2013. By the said order, application filed by the appellant herein/defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure 1908 has been ordered to be reconsidered by the District Court at Khurda, Bhubaneswar (revisional court) by restoring C.R.P. No.5 of 2012 filed by defendant no.1 herein. The said revision was filed by defendant no.1 being aggrieved by the dismissal of the said application being C.S. No.1065 of 2009 by Court of Civil Judge (Senior Division), Bhubaneswar, praying for rejection of the plaint under Order VII Rule 11 of the CPC.

Findings of Court:

Revisional court was justified in rejecting the plaint but the High Court has erroneously set aside the order of the revisional court without appreciating the facts and circumstances of the case and has simply remanded the matter to the revisional court to reconsider the revision afresh on the premise that the revisional court did not have the jurisdiction to reject the plaint under Section 115 of the CPC.

Result : Appeal allowed.