An order rejecting a plaint is not appealable under Section 115 of the Civil Procedure Code, 1908, if an appeal lies against the order.

ORDER:- The plaintiff in an unfiled plaint No.-/74 (A. 2394/74) on the file of the District Munsif of Madurai Taluk at Madurai has preferred the above revision petition against an order rejecting the plaint on 9th April 1974.

2. The petitioner herein as plaintiff claimed damages for Rs. 2,250 for three crops from the suit land for the period from 15-7-1972 to 15-9-1973. The suit land was also the subject-matter of the suit in O. S. No. 358 of 1972 on the file of the District Munsif, Madurai Taluk at Madurai. It was a suit for permanent injunction against the defendant. The plaintiff obtained interim injunction on 24-7-1972, and the order was served on the defendant on 26-7-1972. After full trial, the suit in O. S. No. 358 of 1972 was decreed ordering permanent injunction against the defendant. The plaintiff has pleaded in that suit that he was in possession of the suit lands on the date of the filing of the suit and the decree was passed on 29-9-1973. It is for the same period the plaintiff in the unnumbered suit claimed damages as stated above. It was alleged by the plaintiff that the defendant has been restrained from entering into the suit land from 24-7-1972 to 29-9-1973. The defendant obstructed the plaintiff from enjoying the suit land. The trial court observing that the plaintiff never complained that he was dispossessed by the defendant for the relevant period that inasmuch as the plaintiff has been in possession of the suit property from the date of taking delivery, the suit for damages for three crops is not maintainable, and that the plaintiff cannot claim damages by way of mesne profits from the defendant against whom a decree for permanent injunction was in force during the relevant period held the plaint is not maintainable. On these grounds the trial court rejected the plaint ordering the court-fee paid on the plaint be refunded.

3. Aggrieved by the said order of the Court below, the plaintiff has preferred the above Civil Revision Petition. Prima facie it looks that the order of rejection upon a suit for damages on the ground stated by the trial court is erroneous. Nevertheless the matter has to be discussed and decided upon proper evidence and arguments by the respective parties before the appropriate forum. Mr. Venkataraman, the learned counsel appearing for the defendant (respondent herein) took up an objection that the revision is not maintainable. According to the learned counsel, under Section 2 (2) C.P.C. the decree will include the rejection of a plaint. The rejection of the plaint which is being questioned in this revision petition is construed as a decree, and only an appeal has to be filed and not a revision.

4. Mr. Velusamy the learned Counsel appearing for the petitioner submitted that the High Court under the powers vested in it in Section 115, Civil P. C., can always correct the errors committed by the trial court. The learned counsel also submitted that this court having entertained the revision petition, has ample jurisdiction to revise the order made by the trial court. The learned counsel further contended that no appeal will lie to the High

Court and as such there is no bar for this court to entertain the revision petition under Section 115 of the Civil P. C.

5. Number of decisions were cited by both sides for their respective contentions. In S.S. Khanna v. F.J. Dillon (AIR 1964 SC 497) the Supreme Court has specifically held that no revision will lie to the High Court. The Supreme Court interpreting Section 115 of the Civil P. C. has held that no revision will lie to the High Court in case where an appeal will lie to the High Court directly or indirectly. This decision was followed by many judgments of our High Court, including myself in C R. P. S. R. No. 51709 of 1972 dated 31st October 1974.*As far as the case on hand is concerned, the damages sought to be recovered are more than Rs. 2,000 and as such a

second appeal will definitely lie to the High Court.

* Reported in (1975) 2 Mad LJ 1