Back
IN THE HIGH COURT OF ALLAHABAD
Prakash Padia, J.
Om Prakash Agarwal - Appellant
Vs.
Lacchi Ram And 5 Others – Respondent
MATTERS UNDER ARTICLE 227 No. 673 of 2021
Decided On : 19-3-2021
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Order VII Rule 11 r/w section 151 - Permanent injunction and for declaration that decree - Present petition are that Original Suit was filed by one Lachchi Ram alongwith Mukesh against Rajesh and 4 others including present petitioner Om Prakash Agarwal in Court of Civil Judge (Senior Division), Jhansi for permanent injunction and for declaration that decree passed by Commissioner in Appeal No. 56 of 1993 (Ranpat Singh Parihar vs. State) be declared void interalia on the ground that he is owner of ½of plots - Ranpat Singh has got a decree in his favour from Commissioner on basis of which he has sold land in question to petitioner and respondent nos. 3 to 6 who are trying to dispossess plaintiff.
Finding of the court: When a statutory fiction is created by a Legislature, it cannot be ignored. The effect of such legal fiction is that a position which otherwise is not present, it is deemed to be present under specified circumstances. As stated above, Section 2(2) of Code specifically provides that rejection of a pliant shall be deemed to be a decree, but Legislature has consciously not included order dismissing an application for rejection of plaint filed under Order 7 Rule 11 of CPC within deeming provision and therefore, it is clear that an order seeking rejection of plaint cannot be deemed to be a decree within meaning of Section 2 (2) of CPC. When an order cannot be deemed to be a decree under Section 2(2) of Code, though order decides an important aspect of trial affecting very valuable right of defendant, it cannot be held that an appeal will lie against such an order, especially when no appeal is provided against such an order under Order 43 CPC – It clear that an order rejecting a plaint shall be deemed to be a decree, but it has not been provided in said section that an order dismissing an application to reject a plaint is deemed to be a decree - present petition is not at all maintainable specially due to fact that a statutory alternative remedy is available to the petitioner to file a Civil Revision before revisional court as provided under Section 115 of Code of Civil Procedure.
Result: Order accordingly
JUDGMENT :
Prakash Padia,J.
1. Heard Sri Pankaj Saxena, counsel for the petitioner.
2. The petitioner has preferred the present petition interalia with the prayer to set aside the order dated 05.03.2020 passed by Civil Judge (Senior Division), Jhansi in Original Suit No. 259 of 2016 (Lachchi Ram vs. Rajesh and others).
3. Facts in brief as contained in the present petition are that Original Suit No. 259 of 2016 was filed by one Lachchi Ram alongwith Mukesh against Rajesh and 4 others including the present petitioner Om Prakash Agarwal in the Court of Civil Judge (Senior Division), Jhansi for permanent injunction and for declaration that the decree dated 26.05.1993 passed by Commissioner, Jhansi in Appeal No. 56 of 1993 (Ranpat Singh Parihar vs. State) be declared void interalia on the ground that he is the owner of ½of the plot being plot nos. 2308, 2309, 2310, 2311 and 2314 total 5 plots of area 1.71 decimal, situated in Mohal Nandu Khata, Khewat No. 11, MaujaJhansi, Pargana and DistrictJhansi. Ranpat Singh has got a decree in his favour from the Commissioner, Jhansi on 26.05.1993 on the basis of which he has sold the land in question to petitioner and respondent nos. 3 to 6 who are trying to dispossess the plaintiff.
4. An application was filed by the present petitioner as provided under Order VII Rule 11 read with section 151 of Code of Civil Procedure with the prayer to reject the plaint itself mainly on the ground that the plaintiff is not specified/identify the exact location of his½share and has not annexed map and the decree passed by Commissioner, Jhansi Division Jhansi dated 26.05.1993, copy of the objection filed by the petitioner as stated above is appended as Annexure4 to the present petition. The aforesaid application was filed by the petitioner in the aforesaid suit on 01.04.2019. The aforesaid application was heard by the Civil Judge (Senior Division), Jhansi and rejected vide its judgment and order dated 05.03.2020. It is argued that application filed by the petitioner under Order VII Rule 11 read with section 151 of the Code of Civil Procedure is illegally and arbitrary rejected by the trial court. It is further argued that the order impugned is in complete violation of the settled principles of law.
5. Counsel for the petitioner relied upon the following judgments:
2. Virudhunagar Hindu Nadargal Dharma Paribalam Sabai & Ors. Versus Tuticorin Educational Society & Ors reported in (2019) 9 SCC page 538 decided on 03.10.2019.
3. Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra)
(D) THR LRS & ORS reported in 2020 4 Supreme 160 decided on 09.07.2020.
4. Matter Under Article 227 No. 339 of 2021 (Indian Oil Corporation Ltd. vs. M/S J. Lal Filling Station And Another) decided on 29.01.2021.
6. Heard counsel for the petitioner and perused the record.
7. It appears from perusal of the record that in Original Suit No. 259 of 2016 filed by the plaintiff respondent, an application was filed by the petitioner under Order VII Rule 11 read with Section 151 of C.P.C., to dismiss the aforesaid suit. From perusal of the order passed by the trial court it has been held by the court below that the plaint could only be rejected in case it is found that no cause of action is disclosed or suit is barred by limitation under Rule 11 (d). It is stated in the order impugned that the issue has already been framed and issue nos. 2 and 3 in respect of valuation and jurisdiction of the court has already been decided. It is further stated in the order impugned that the application filed by the present petitioner could only be decided after perusal of the evidence and as such the application filed by the present petitioner for dismissal of the plaint was rejected.
8. In the case of R.K. Roja (Supra), it was held by the Hon'ble Supreme Court that the application filed under Order VII Rule 11 of the Code of Civil Procedure can be filed at any stage. The only restriction is th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
