Jurisdictional errors in maintaining a civil appeal bar the consideration of subsequent petitions under CPC provisions.

Order on Board

23.01.2025

1. The petitioner has filed this petition assailing the order dated

30.10.2019 passed by the Additional District Judge (FTC), Korba in Civil Appeal No.09/2018 whereby the miscellaneous appeal preferred by the petitioner has been dismissed.

2. The facts of the present case are that the petitioner/plaintiff filed a suit for declaration of title and permanent injunction against the respondent/defendant No.1 and also challenged the notice issued by defendant No.1 in the revenue proceeding bearing RRC Case No.05/A-16/2014-15 dated 29.09.2018. The plaintiff issued notice to the defendants under Section 80 of the Code of Civil Procedure, 1908 (for short the ‘CPC’) and also filed an application under Section 80 (2) of the CPC showing urgency.

3. Learned Additional Civil Judge, Class-1 Korba (C.G.) in the unregistered civil suit vide order dated 02.11.2018 held that the suit is not maintainable according to the provisions of Section 257(h) of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code of 1959’) and therefore, no order can be passed on the application filed by the plaintiff under Section 80(2) of the CPC.

4. Learned Trial Court rejected the application moved under Order

80(2) of the CPC and applying the provisions of Order 7 Rule 11(d)

of the CPC, rejected the plaint.

5. The petitioner/plaintiff preferred a miscellaneous appeal before the learned Additional District Judge (FTC) Korba (C.G.) and the learned Court below dismissed the appeal vide order dated 30.10.2019. The petitioner has challenged both orders by filing this petition under Article 227 of the Constitution of India.

6. Learned counsel appearing for the petitioner would submit that the learned Trial Court wrongly dismissed the suit while dealing with the provisions of Section 80(2) of CPC without affording any opportunity of hearing to the plaintiff. It is further argued that no application was filed by the defendants with regard to the maintainability of the civil suit, therefore, the orders passed by the Courts below are improper and contrary to the law. It is also contended that when the civil suit was barred according to the provisions of Section 257 of the Code of 1959, there was no occasion for the learned Trial Court to apply provisions of Order 7 Rule 11 of CPC particularly, when no such application was moved by the defendants. He would pray to quash the order dated

30.10.2019.

7. On the other hand, Mr. Ramteke, the learned Panel Lawyer appearing for the State would oppose the submissions made by Mr. Verma.

8. Heard learned counsel appearing for the parties and perused the documents placed on the record.

9. Section 257 (h) of the Code of 1959 reads as under:-

“S.257(h) any claim against the State Government connected with or arising out of, the collection of land revenue or the recovery of any sum which is recoverable as land revenue under this Code or any other enactment;

10.Admittedly, the petitioner had filed a civil suit. A notice was issued to the petitioner on 20.08.2009 after the registration of general power of attorney on 29.09.2018 for recovery of Rs.68390/-. According to the provisions of Section 257(h) of the Code of 1959, the exclusive jurisdiction has been conferred to the revenue authorities to decide the issue.

11.An application under Section 80(2) of the CPC was moved by the petitioner but while deciding the said application, the learned Trial Court came to the conclusion that as the civil suit is barred by law, therefore, the same is not maintainable.

12.Learned Trial Court applying the provisions of Order 7 Rule 11(d)

of CPC, rejected the plaint.

13.Order 7 Rule 11(d) of the CPC is reproduced herein below for reference:-

“Order 7 Rule 11(d) where the suit appears from the statement in the plaint to be barred by any law;”

14.Section 2(2) of the CPC defines ‘decree’ which reads as under:-

“Section 2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determ