The main legal point established in the judgment is that an order of dismissal for default does not constitute a decree under the Code of Civil Procedure.

JUDGMENT :

1. Heard learned senior counsel Mr.Devan Parikh with learned advocate Mr.H.J.Karathiya for the appellant, learned senior counsel Mr.Devang Nanavati with learned advocate Mr.Saurabh Mehta for respondent Nos.1,2,6 & 7 and learned advocate Mr.Rasesh Parikh for respondent Nos.3,4 & 5.

2. By way of the present First Appeal filed under Section 96 of the Code of Civil Procedure Code, 1908, the appellant has challenged the judgment and decree dated 31.01.2020 passed by the learned 6th Additional Senior Civil Judge, Surat in Special Civil Suit No.203 of 2017 below Exhibits 1, 50 and 51, whereby the learned Judge has dismissed the suit.

3. The brief facts, leading to the present First Appeal, are as under:-

3.1 The appellant – original plaintiff filed suit seeking possession, specific performance, as well as perpetual injunction, which came to be dismissed on 31.01.2020 for want of leading evidence on behalf of plaintiff.

3.2 While dismissing Exhibit 5 application, learned trial Court directed to produce documents within 3 months from the date of order. The said order came to be challenged by way of Appeal From Order being No.41 of 2019 before this Court. This Court did not grant stay of proceedings. Thereafter, the appellant made an application at Exhibit 50 to direct defendants to demarcate vacant area and submit the map. The said application came to be dismissed by the learned trial Court on 31.01.2020 and also dismissed the suit on the same day. Hence, the present appellant before this Court.

4. The preliminary objection raised by the learned Senior Advocate Mr.Devang Nanavati for respondent No.1, 2, 6 and 7 and learned advocate Mr.Rasheh Parikh for respondent Nos. 3, 4 and 5 that appeal would not be maintainable against the order dated 30.01.2020 since the order is not a decree.

5. Hence, this Court is only considering the question about the maintainability of the present appeal and dealing with the question whether order dated 30.01.2020 amount to decree or not. Since the issue at present is in a narrow compass this Court is not going into the merits and demerits of the facts involved in the suit.

Submissions of learned Senior Counsel for the appellant.

6. Learned senior counsel Mr.Devan Parikh for the appellant submits that the dismissal of the suit amounts to the decree and thus, the appeal would lie under Section 96 of the Code of Civil Procedure. Learned senior counsel for the petitioner has relied upon the following provisions in support of his submissions:-

Section 2(2) of the Code of Civil Procedure, 1908 which is reproduced hereinunder:-

2. Definitions.- In this Act, unless there is anything repugnant in the subject of context-

(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.

6.1 The definition of decree is divided in two parts, first part refers to an adjudication determining the rights of the parties and second portion include “the rejection of a plaint”. Therefore, if plaint is rejected by pronouncement of a lower Court, it can be construed to be a decree, even if there is no conclusive determination of the rights of the parties by adjudication.

6.2 The appellant’s case is that the pronouncement of the Court falls under the first portion as well as the second portion of the definition of the term decree. By pronouncement of the lower Court, the plaint stands rejected. The only issue to be determined is whether the pronouncement amounts to a