NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved for Orders on : 19.07.2021

Order Passed on : 29.07.2021

W.P.(227) No.324 of 2020

1. Shanti Bai W/o Shri Mangal Sai Aged About 67 Years

2. Bhatri W/o Shri Kamlu Aged About 40 Years

3. Pali W/o Anturam Aged About 45 Years

(All are r/o Rautpara, Chitalanka, Tahsil And District Dantewada

Chhattisgarh)

---- Petitioners

Versus

1. Kishnuram S/o Shri Chandan Aged About 50 Years R/o Chitalanka

Tahsil And District Dantewada Chhattisgarh

2. Vidhyasagar Singh S/o Shri Kedarnath Singh Aged About 57 Years R/o

Infront Of Ambedkar Park Dantewada Tahsil And District Dantewada

Chhattisgarh

3. Tahsildar Dantewada Tahsil Office Dantewada District Dantewada

Chhattisgarh

4. State Of Chhattisgarh Through Collector Dantewada, District

Dantewada Chhattisgarh

---- Respondents

For Petitioners

:

Mr. Prafull N. Bharat, Sr. Advocate with Mr.

Keshav Dewangan, Advocate.

For respondent No.1

:

Mr. Shrawan Agrawal, Advocate.

For respondents No.03 & 04 :

Dr. Anil Tripathi, Panel Lawyer.

Hon'ble Shri Justice

Rajendra Chandra Singh Samant

CAV Order

29/07/2021

1. This petition has been brought being aggrieved by the order dated

24.12.2019 passed in Miscellaneous Civil Appeal No.11 of 2015.

2. It is submitted, that the petitioners are defendants in the Civil Suit No.5A

-2-

of 2013. The petitioners filed an application under Order VII Rule 11 of

C.P.C. praying for rejection of the plaint, which was allowed by the trial

Court vide order dated 05.10.2015 and the plaint of the respondent

No.1/plaintiff was rejected. Respondent No.1 then preferred

Miscellaneous Appeal before the Court of Additional District Judge,

F.T.C. South Bastar Dantewada, C.G. which has been allowed by the

impugned order and the Civil Suit of Respondent No.1 has been

restored.

3. It is further submitted that the order of plaint rejection passed by the trial

Court under Order VII Rule 11 of C.P.C. was not appealable under Order

43 Rule 1 of C.P.C. Such an order of plaint rejection is appealable as an

appeal against the decree. Section 2(2) of C.P.C. provides that the order

of rejection of plaint is included in the definition of decree. Therefore,

such an order was appealable in the First Appeal under Section 96 read

with Order 41 of C.P.C.

4. Reliance has been placed on the judgment of Supreme Court in the

Case of Rishabh Chand Jain & Anr. Vs. Ginesh Chandra Jain reported

in (2016) 6 Supreme Court Cases 675 and also on the judgment of

Supreme Court in the case of Samsher Singh Vs. Rajinder Prashad &

Ors. reported in AIR 1973 Supreme Court 2384.

5. Learned counsel for the private respondent concedes that the plaint

rejection order of the trial Court was not appealable under Order 43

Rule 1 of C.P.C., however, it is submitted that the appeal has been

decided on merits, therefore, it may be treated as decision in First

Appeal filed under Section 96 of C.P.C.

6. Learned counsel for private respondents submits, that the High Court

has directed for filing of Second Appeal which has been filed and

registered as 520 of 2017, therefore, the matter being subjudice in the

Second Appeal, this petition under Article 227 Constitution is not

maintainable.

7. Learned State counsel makes a formal objection.

8. In reply, it is submitted by the learned Counsel for petitioner that the

order in miscellaneous Civil Appeal cannot be treated as First Appeal

because it is an order passed without jurisdiction. It is the statute which

governs the appeal and not the dictum of any Court. Therefore, the

impugned order is not sustainable.

9. Heard learned counsel for both the parties and perused the documents

present.

10.Considered on the submissions. It has been conceded by the learned

counsel for private respondents that the order of the trial Court dated

05.10.2015 was not appealable under Order 43 Rule 1 of C.P.C. How

the question raised is this, that whether