The interesting question to be decided in this petition filed under Article 227 of Constitution of India is whether a trial court is competent to dismiss a suit, before issuing summons to the defendants?

2. Petitioner is the plaintiff in an unnumbered suit on the file of Additional Sub Court, Kozhikode. Suit was filed seeking a decree to enforce statutory charge for Rs.1,80,683,28 with future interest on Rs.1,10,000 at the rate of 6% per annum by sale of plaint schedule property. Case of petitioner was that respondents/defendants executed an agreement for sale on 2-7-1995 and Rs.1,10,000 was paid as part of sale consideration and by virtue of the agreement a statutory charge as provided under Section 55(6) (b) of Transfer of Property Act has been created and respondents committed breach of agreement and were not ready and willing to perform their part of the contract and so petitioner is entitled to realize the advance amount paid by enforcing the statutory charge. Before numbering the suit, under Ext.P-2 judgment dated 10-4-2006 learned Sub Judge dismissed the suit holding that the cause of action averred in the suit is barred by limitation and suit is not maintainable either on facts or law. Judgment was pronounced and suit was dismissed at the admission stage. This petition is filed challenging the judgment contending that court below should have issued—summons to respondents and should not have dismissed the unnumbered suits by a judgment considering the merits of the case. According to petitioner Ext.P-2 judgment is vitiated and is to be set aside and suit is to be remanded back to the trial court for fresh disposal.

3. Though notice was issued to respondents they did not appear either personally or through a lawyer. Learned counsel appearing for petitioner was heard. Learned counsel relied on the decision of the Apex court in Mayar (H.H). Ltd. and others v. Owners & Parties Vessel M.V. Fortune Express and others (2006 (3) S.C.C. 100) and argued that trial court is competent only to reject the plaint as provided under Order VII, Rule 11 at the admission stage on the grounds shown therein and cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, material facts are required to be stated but not the evidence except where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence and so long as plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. It is therefore argued that Ext.P-2 judgment is illegal and is to be set aside.

4. Judgment is defined in Section 2(9) of Code of Civil Procedure (hereinafter referred to as the Code) as means the judgment given by the judge on the grounds of a decree or order. Decree is defined in Section 2(2) means 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 and partly final; Order is defined in Section 2(14) as means the formal expression of any decision of Civil Court which is not a decree. Section 33 of the Code provides that the court after the case has been heard shall pronounce the judgment. Order XX provides the procedure for judgment and decree. Under Rule 1, after the