An appeal does not lie against an order rejecting a plaint in revisional jurisdiction; the remedy is via writ under Article 227.

JUDGMENT :

SOUMEN SEN, J.

1. The question which has been framed for the reference is as follows:

“Whether the remedy lies by filing Second Appeal, if the Revisional Court reverses the order of the Trial Court refusing to reject the plaint, as a corollary effect the plaint is rejected in view of the definition of “decree” given under Section 2(2) of the Code.”

2. The genesis of the reference is an order passed by the first Appellate Court, by which the judgment of the trial court was reversed.

3. The facts that are necessary for better appreciation of the reference are stated below.

4. A notice was issued by the Deputy Director, Employees State Insurance Corporation (in short ‘Corporation’) regarding implementation of the Employees’ State Insurance Act, 1948 (in short ‘the said Act 1948’) and payment of contribution under Section 40 of the said Act, Ward Memorial Church School (in short ‘School’) challenged the notice and filed a Civil Suit being T.S. No. 327 of 2012 before the 2nd Court, Civil Judge, Junior Division, at Midnapore. The Corporation filed an application for rejection of the plaint on the ground that the notice can only be challenged before the Employees’ Insurance Court and the Civil Court has no jurisdiction to decide the subject matter of the dispute.

5. The learned Civil Judge vide an Order No. 6 dated 26th July, 2013 allowed the application for rejection under Order 7 Rule 11(d) CPC and the suit was thus, dismissed.

6. The School being aggrieved by the aforesaid order filed an appeal under Section 96 read with Order 41 Rule 1 CPC being Title Appeal No. 86 of 2013 before the learned Additional District Judge, 7th Court, Paschim Midnapore. The 1st Appellate Court allowed the appeal vide an order dated 20th July, 2017 and the judgment and order of the trial court was set aside. The First Appellate Court held that Civil Court has jurisdiction to adjudicate the dispute raised by the School and the learned Trial Court was directed to decide the dispute within a time frame specified in the said order.

7. The Corporation challenged this order by a Civil Revision filed under Article 227 of the Constitution of India. After considering the judgments of the Hon’ble Division Bench of this Court in Suraj Mull Gouti vs. Sumati Gouti and Others , 2005 (2) WBLR Cal 296, Amal Chandra Mondal vs. Anita Biswas and Another, 2006 (2) Cal. L.J. 180 and Surajmal Jain vs. Prabir Kumar Sett , 1980 (2) Cal. L.J. 161 Hon’ble Justice Harish Tandon was of the view that the decisions in Suraj Mull Gouti (supra) and Amal Chandra Mondal (supra) are in conflict with Surajmal Jain (supra). The observations of Justice Tandon relevant to the issue are stated below:

“This Court, therefore, notices a conflicting view on the proposition whether the nature of the order is the sole and primary factor to ascertain the remedy available to an aggrieved person or it would be dependent upon the nature of the proceeding filed before the Court and the power vested under relevant provisions is exercised; to be more precise, whether an appeal or revision would be the remedy if the nature of the order is such which comes within the purview of the aforesaid provisions of the Code or it is the proceeding itself filed before the Court would be the guiding factor to decide the remedy to the aggrieved person.

Naturally an order passed by the District Judge under Section 115 A of the Code is not an appealable one nor a letters patent appeal lies if such jurisdiction is exercised by the High Court under Section 115 of the Code. Whether a second revisional application lies against the order of the District Judge under Section 115 A is yet a debatable question, but it do