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ALLAHABAD HIGH COURT
YOGENDRA KUMAR SRIVASTAVA, J.
Shrivatsa Goswami - Appellant
Versus
Anant Prasad Singh and Another - Respondents
Second Appeal No. 599 of 2023
Decided On : 17-01-2024
Remand - Civil Procedure - Order VII Rule 11, Order XLI Rule 23, Section 100 - The court interpreted the provisions regarding the rejection of plaints and appeals, concluding that an order reversing a rejection is a remand order, not a decree, thus subject to different appeal provisions.
Fact of the Case:
The plaintiff sought to declare two gift deeds null and void, but the trial court rejected the plaint as barred by limitation. The appellate court reversed this decision, leading to the current appeal regarding the nature of the appellate order.
Finding of the Court:
The appellate court's order was deemed a remand under Order XLI Rule 23, not a decree under Section 2(2), thus not subject to a second appeal under Section 100 but rather an appeal from an order under Section 104.
Issues: Whether the appellate court's order reversing the trial court's rejection of the plaint constituted a decree subject to a second appeal or a remand order subject to an appeal from an order.
Ratio Decidendi: The court held that an order reversing a rejection of a plaint is a remand order under Order XLI Rule 23, which does not allow for a second appeal under Section 100, but rather an appeal from an order under Section 104.
Result: The appeal is to be treated as an appeal from an order under Section 104 read with Order XLIII Rule 1(u).
JUDGMENT :
(Yogendra Kumar Srivastava, J.) :
A seminal question has arisen as regards the legal remedy available against an order passed in an appeal arising out of an order of rejection of plaint passed under Order VII Rule 11 of the Civil Procedure Code, 1908 (the Code).
2. It has been pointed out that there is considerable obfuscation on the issue with no clear enunciation of law on the point.
3. Heard Sri Tarun Agrawal, learned counsel for the appellant and Sri Rahul Sripat, learned Senior Counsel appearing alongwith Sri Ishir Sripat for the respondents. Sri Ajay Kumar Singh, learned counsel has also been heard.
4. The present appeal is directed against the judgment and order dated 7.4.2023 passed by the Additional District Judge, Court No. 8, Mathura in Civil Appeal No. 67 of 2022 (Anant Prasad Singh v. Shrivatsa Goswami and another), whereby the appeal has been allowed and the earlier order dated 22.11.2022 passed by the trial Court rejecting the plaint under Order VII Rule 11 of the Code, has been set aside.
5. The facts giving rise to the aforesaid controversy emanates from an original suit being O.S. No. 83 of 2022 instituted by the plaintiff-respondent, seeking to declare as null and void a registered gift deed dated 25.5.1986 executed in favour of the predecessor-in-interest of the defendant as well as the subsequently registered gift deed dated 17.10.1987 executed in favour of the father of the defendant-appellant herein.
6. The suit having been instituted in the year 2022, years after the first gift deed registered on 25.5.1968, the defendant moved an application under Order VII Rule 11(d) for rejection of the plaint as being barred by limitation.
7. The trial Court allowed the application under Order VII Rule 11 and held the suit to be barred by limitation and accordingly rejected the plaint.
8. The decree dated 22.11.2022 passed by the trial Court rejecting the plaint, was assailed by the plaintiff-respondents in Civil Appeal No. 67 of 2023.
9. The aforesaid appeal has been allowed by an order dated 7.4.2023 setting aside the earlier order of rejection of the plaint dated 22.11.2022, with a direction to the trial Court to restore the suit to its original number, re-register the Original Suit No. 83 of 2020, invite objections/written statements from the defendants, in addition to other issues, frame an issue regarding limitation and after taking evidence give a decision on all the issues that have been framed. The lower appellate Court, also fixed a date for appearance of the parties before the trial Court and directed that the records of the case be remitted to the trial Court for proceeding with the case.
10. It is against the aforesaid order dated 6.3.2023 passed by the lower appellate Court in Civil Appeal No. 67 of 2022, that the defendant-appellant has preferred the instant appeal under Section 100 of the Code.
11. The question with regard to the maintainability of the appeal has been raised on behalf of the plaintiff-respondent by pointing out that the order dated 7.4.2023 passed by the lower appellate Court being an order of remand under Order XLI Rule 23/23-A of the Code, the same would be amenable to an appeal from an order as described under Order XLIII Rule 1(u) of the Code read with Section 104(1)(i).
12. It is submitted that the trial Court having disposed of the suit on the preliminary issue of limitation and the lower appellate Court having set aside the aforesaid judgment/decree passed by the trial Court with a direction to decide the suit on the said preliminary issue after framing other issues, the order passed by the lower appellate Court would be referable to its powers under Order XLI Rule 23 of the Code. The order would be amenable to an appeal under Order XLIII Rule 1(u) and cannot be subjected to a Second Appeal under Section 100 of the Code. The present appeal would therefore not be maintainable and is liable to be dismissed.
13. An objection has been raised by the Stamp Reporter, also, w
An order reversing a trial court's rejection of a plaint is a remand order, not a decree, thus subject to different appeal provisions.
The court established that an order reversing a trial court's rejection of a plaint is a remand order, not a decree, thus subject to different appeal provisions.
Revision petitions under Section 115 are non-maintainable against orders passed under Section 96; appeal should be under Section 100 of the Code of Civil Procedure.
The principle of res judicata cannot serve as a basis for rejecting a plaint under Order VII Rule 11 of the CPC; it must be framed as a preliminary issue in trial.
Legal actions must be initiated within prescribed time limits, and stale claims that lack timely assertion cannot proceed; thus, suits filed beyond the limitation period are barred by law.
The court established that a plaint can be rejected under Order VII, Rule 11 if it is barred by limitation, regardless of the merits of the case.
Civil Law – Decree - A decree is preliminary when further proceedings have to be taken before suit can be completely disposed of. It is final when such adjudication completely disposes of suit - It m....
The proviso of Order 7, Rule 11 evidently covers the cases falling within the ambit of clauses (b) and (c) and has no application to a rejection of a plaint under Order 7 Rule 11(d).
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