TaxTMI 
TaxTMI 
2023 (9) TMI 1736
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....he first Appellate Court, by which the judgment of the trial court was reversed. 3. The facts that are necessary for better appreciation of the reference are stated below. 4. A notice was issued by the Deputy Director, Employees State Insurance Corporation (in short, 'Corporation'), regarding implementation of the Employees' State Insurance Act, 1948 (in short 'the said Act, 1948') and payment of contribution under Section 40 of the said Act, Ward Memorial Church School (in short, 'School') challenged the notice and filed a Civil Suit being T.S. No.327 of 2012 before the 2nd Court, Civil Judge, Junior Division, at Midnapore. The Corporation filed an application for rejection of the plaint on the ground that the notice can only be challenged before the Employees' Insurance Court and the Civil Court has no jurisdiction to decide the subject matter of the dispute. 5. The learned Civil Judge vide an Order No.6 dated 26th July, 2013 allowed the application for rejection under Order 7 Rule 11(d) CPC and the suit was thus, dismissed. 6. The School being aggrieved by the aforesaid order filed an appeal under Section 96 read with Order 41 Rule 1 CPC being Title Appeal No. 86 of ....
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....the order is passed under Section 115A of the Code by the District Judge reversing the order of the Trial Court having a resultant effect that the suit is held to be non-maintainable, yet such order is passed exercising a power conferred under Section 115A of the Code and in my opinion the nature of jurisdiction exercised by the Court below should be the determining factor for further remedy. In the other given situation, if the Appellate Court exercises power conferred upon it under Section 96 of the Code and decides a dispute, which if exercised by the Court of original jurisdiction, the remedy lies by way of a revision; such order in my opinion should be treated as an order passed by the Court of Appeal below provided the appeal is otherwise competent under the Code of Civil Procedure and the remedy provided in the Code against such appellate order should be the proper remedy available to the aggrieved person. There is hardly any dispute that in view of the nature of an order passed under Order VII Rule 11 of the Code, more particularly the definition of "decree" given in Section 2(2) thereof, the appeal lies before the Appellate Court as such order neither com....
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....swer the reference." 9. This matter has been assigned to this bench on 2nd November, 2022. 10. In the reference, the State is represented by the learned Advocate General, Mr. Bhaskar Ghosh, Sr. Advocate as amicus, Mr. Probal Mukherjee, Sr. Advocate on behalf of Corporation and Mr. Sounak Bhattacharyya on behalf of School. 11. Mr. Soumendra Nath Mookherjee, Advocate General appearing on behalf of the State has submitted that the reference must be answered in the affirmative. 12. This is for the following reasons: a) An order of a Court rejecting a plaint is deemed to be decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908(CPC). This is clear from a plain reading of Section 2(2) of the CPC which provides as follows: 2. In this Act, unless there is anything repugnant in the subject or context, (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the d....
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....) Shankar Ramchandra Abhyankar v. Kirishnaji Dattaraya Bapat, reported at AIR 1970 SC 1. iii) Amal Chandra Mondal v. Anita Biswas & Anr., reported at 2006 (2) Cal LJ 180 at paragraphs 3 to 5, 21 to 24 iv) Uttam Chand Surana v. Prabir Guha, reported at 2016(2) CHN (Cal) 49 at paragraphs 6 to 16 v) Annapurna Dassi v. Sarat Chandra Bhattacharjee, reported at 38 CWN 1063 vi) Bibhas Mohan Mukherjee & Ors. v. Hari Charan Banerjee & Ors., reported at AIR 1961 Cal 491 at paragraphs 7, 16 and 19. 14. Mr. Advocate General has submitted that an identical issue came up for consideration in Suraj Mull Gouti (supra). The learned Trial Court held the suit to be maintainable. A revisional application was preferred against the said order. The Revisional Court held that the suit was not maintainable and thereby dismissed the suit. Before the Hon'ble Division Bench the question arose whether a second appeal would lie from the order of the Revisional Court and in deciding the said issue it was held that the order of the Revisional Court dismissing the suit would be a decree under Section 2(2) of the CPC and the order passed by the Revisional Court would be consid....
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.... under Section 100 CPC. Mr. Ghosh has submitted that Surajmal Jain (supra) is essentially a case relating to adjudication under Order 21 Rule 58 CPC and Order 21 Rule 98 and 100 of CPC. The issue was whether an appeal arising out of an adjudication in such proceedings require admission under Order 41 Rule 11 of the Code of Civil Procedure. 20. Mr. Ghosh submits that three judgments referred by Justice Tandon would be relevant in considering the reference as they are arising out of an order passed under Order 7 Rule 11 CPC. They are: 1. Suraj Mull Gouti vs. Sumati Gouti & Ors.; 2005(2) WBLR (Cal) 296 2. Amal Chandra Mondal Vs. Anita Biswas & Ors.; 2006 (2) CLJ 180 3. Uttam Chand Surana Vs. Prabir Guha; 2016 (2) CHN Cal 49 21. Mr. Ghosh has submitted that the decision of the full Bench in Bibhas Mohan Mukherjee (supra) is a clear authority for the proposition that the second appeal would lie and the reference is to be answered in the affirmative. It is submitted that in the said decision, it has been clearly held that if the order of dismissal amounts in law to be an order rejecting the plaint under Order 7 Rule 11, it is appealable as a "decree" with....
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.... the suit property and for permanent injunction restraining the respondents from entering the suit property and from disturbing the peaceful possession of the appellant in the suit property. It appears that the defendants-respondents are the two daughters of the plaintiff. The plaintiff/appellant has alleged that the plaintiff purchased two adjacent plots of Bastu land in the name of his wife in the years 1973 and 1978 and the plaintiff had built a pucca dwelling house on the said land and that the plaintiff's wife was only a 'Benamdar' but the actual owner of the property is the plaintiff himself. The plaintiff has further alleged that the defendants-respondents, sometime in the year 2002, tried to enter into the plaintiff's property and declared that they are the present owners of the suit property having purchased the same from their mother. The plaintiff has alleged that the deeds through which the defendants are claiming title to the suit property are forged deeds and that the plaintiffs wife, who was suffering from cancer at the material time, was not at all in a position to execute any such deeds, the plaintiff has challenged such deeds through which the defe....
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....der 41 Rule 23 is appealable in terms of Order 43 Rule 1(u) of CPC. When the first Appellate Court had disposed of the appeal on the preliminary point of maintainability or jurisdiction of civil court without going into the merits of the suit and remanded the suit for trial before the Learned Trial Judge, it has certainly exercised its power under Order 41 Rule 23 of the Civil Procedure Code. An order under Order 41 Rule 23 of Civil Procedure Code is appealable in terms of Order 43 Rule 1(u) and a first miscellaneous appeal will lie from such an order. 34. When an application under Order 7 Rule 11(d) of the Code of Civil Procedure is allowed by the Ld. Trial Judge and the suit is dismissed and the said order is affirmed by the First Appellate Court, the order of the First Appellate Court assumes the character of the decree in terms of Section 2(2) of the Code of Civil Procedure and a Second Appeal will lie from such a decree. 35. Mr. Probal Mukherjee learned Sr. Advocate representing the Corporation has submitted that an appeal arising out of an order rejecting a plaint being a deemed decree is appealable as first appeal under Section 96 of the Code of Civil Procedure. Howeve....
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.... the rights of the parties it will fall within the definition of a decree under Section 2(2) read with Section 47 and would be an appealable order. 40. Mr. Mukherjee has also referred to the decision of the Hon'ble Supreme Court in Mangluram Dewangan vs. Surendra Singh, reported in 2011(12) SCC 773 at page 780 to show the nature of the order which can be considered to be a decree under Section 2(2) of the Code. The said judgment was also relied upon to show the difference between a "decree" appealable under Section 96 and an "order" appealable under Section 104 as stated in paragraph 12 of the said judgment. 41. Mr. Mukherjee submits that the said decision has authoritatively held the nature of order that would pass the test of a "decree" or an order. 42. Mr. Mukherjee has submitted that a party aggrieved by any appellate judgment and order arising out of the deemed decree of rejection of plaint, has a recourse by way of second appeal under Section 100 of the Code of Civil Procedure, 1908 since such appellate order, reversing or affirming conclusively, decides a lis finally and hence a 'decree' within the meaning of Section 2(2) of the Code of Civil Procedure, 1908. 43.....
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....e decision on a particular issue, as distinguished from the dismissal of the suit, obviously stands on a different footing and has quite rightly, more often than not, been differently construed, and provided, further, it is remembered that dismissal of the suit for non-payment of court-fee is not a "dismissal for default", which is excluded, -- and expressly excluded, -- from the definition of "decree" under Section 2(2) of the Code, as such dismissal of the suit is not, in my opinion, "'an order' of dismissal for default" within the meaning of the said section and must always be distinguished and kept distinct and separate from the same." (emphasis supplied) 45. The definition of "decree" in Section 2(2) "shall be deemed to include the rejection of a plaint". 46. The word "deemed" is used in modern legislations in different senses and not always for the purpose of creating a fiction but at times to accommodate which is obvious. The rejection of a plaint has the natural consequence of the claims and reliefs being denied. The rejection of plaint is thus presumed to be a decree for the purpose of deciding the remedy available to the plaintiff under the Code. Th....
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.... Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; 14. A reading of the definition of decree in Section 2(2) shows that the following essential requirements should be fulfilled if an order should be treated as a 'decree': (i) there should be an adjudication in a suit; (ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it; (iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and (iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under Section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default. 25. If the court orders that suit has been abated or dismissed the suit as having abated, as a consequence of rejection of an application under Order 22 Rule 3 of the Code, as noticed above, there is no determina....
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....reported in 2012(5) SCC 540 in paragraph 11 which reads: "11. The High Court relied upon a decision of this Court in the case Narayanan v. Kumaran and Ors. (2004) 4 SCC 26 in holding that Civil Miscellaneous Appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100." 49. In Shamsher Singh (supra) a preliminary objection was raised by the defendant/appellant that the suit was not properly valued for the purposes of court fees and jurisdiction. The Trial Court decided it as a preliminary issue and rejected the plaint as the revised court fees determined by the Trial Court was not put in by the plaintiff. This order was carried in appeal. The High Court allowed the appeal. The appellant preferred an appeal by Special Leave. This was opposed on the ground ....
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....pealable order. The remedy by a revision was availed of since the trial court had failed to exercise its jurisdiction in deciding the matter in favour of the plaintiff and the revisional court exercised its jurisdiction and thereby dismissed the suit. This power was exercised in terms of Section 115A as amended. 53. The Division Bench was essentially considering an objection with regard to the classification of the appeal. The appeal was originally classified as a First Miscellaneous Appeal. The Hon'ble Division Bench had proceeded on the basis that the power of revision under Section 115 of the Code of Civil Procedure is in reality exercised by a superior court as part of general appellate jurisdiction per Justice A.N. Grover in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat reported in AIR 1970 SC 1. In Skankar Ramchandra (supra) at paragraph 6 this issue was addressed. It states: "6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the CPC circumscribes the limits of that jurisdiction but the jurisdi....
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.... way of a revision. In the said decision in paragraph 29.2 reference was made to Tek Singh (supra) where the bench speaking through Justice Nariman while discussing Section 115 and its proviso held that revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. The jurisdiction under section 115 CPC is essentially exercised to correct jurisdictional errors. 56. The said paragraphs would give an impression that it is the nature of the jurisdiction that was to be taken into consideration in deciding the remedy. 57. It is sought to be argued that once the order impugned is a 'decree' or a "deemed decree" the remedy provided under the Code should follow. Moreover, there is a clear distinction between the power exercised by an appellate court and a revisional court. The revisional jurisdiction is correctional in nature and does not contemplate a revisional decree unlike an appellate court which by virtue of Order 41 Rule 33 can pass any decree and make any order which ought to have been passed by the trial court exercising original jurisdiction. The CPC does not contemplate a revisional court to pass a decree in exercise of its revisional jur....
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....rocedure would in substance reject the plaint but since the said decree is not passed by the court of original jurisdiction, namely the trial court, the remedy by way of writ petition Under Article 227 of the Constitution would be available to the aggrieved party and Respondent No. 1 has availed the said remedy." (emphasis supplied) 61. The amendment of Section 115 in Orissa is in pari materia with the West Bengal Amendment and the scope, ambit, width and power of the revisional court was considered in Frost International Limited (supra). In fact the counter argument in support of lack of jurisdiction of the revisional court to pass a decree was negatived in Frost International Limited (supra) on interpretation of Section 115 (as amended) as is clearly evident from paragraph 32 of the said judgment. In fact the judgment of Justice Biswanath Rath in Milan Developers and Builders (P) Ltd. v. Frost International Limited; 2016 SCC Online Ori 1051 to the effect that "the Revisional Authority has a limited role in the matter of hearing on rejection of an application under Order 7 Rule 11 of CPC and in the event, it feels that there is some substance in considering the a....
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....ut of an order under Order 21 Rule 103 CPC and not with regard to the remedy. 65. Thereafter the issue was resolved with reference to an earlier decision of this court as would appear from the following paragraphs: "14. While considering such an issue, we have got a direct authority on this point. In an identical situation, a question came up for consideration as to whether an order of rejection of plaint can be assailed in a regular appeal or it can be challenged by way of revisional application under section 115 of the Code of Civil Procedure. 15. While considering such an issue, the Division Bench of this Hon'ble Court, after considering the nature of the order which is passed under Order 7 Rule 11 of the Code of Civil Procedure and the definition of "decree" as defined under section 2(2) of the Code of Civil Procedure conclusively held in the case of Smt. Annapurna Dassi & Ors. vs. Sarat Chandra Bhattacharjee & Ors. reported in 38 CWN page 1063 that when an order is passed under Order 7 Rule 11 of the Code of Civil Procedure and an appeal preferred therefrom is dismissed by the Learned First Appellate Court, such an order of the First Appellate Court is....
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....Shankar Ramchandra (supra) was rendered in the context of merger of orders. This has been dealt with by Justice Kausik Chanda in a separate concurring judgment. 68. Under such circumstances we answer the reference in the negative in view of paragraph 32 of Frost International Limited (supra). The proper remedy would be to file a writ petition under Article 227 of the Constitution of India. 69. We record our sincere appreciation for the assistance received from the learned Advocate General, Mr. Bhaskar Ghosh, Amicus, ably assisted by Mr. Rwitendra Banerjee, Mr. Probal Kumar Mukherjee, Senior Advocate and Mr. Saunak Bhattacharjee, Advocate. (Soumen Sen, J.) Per Amrita Sinha J.: I have had the opportunity of perusing the draft judgment prepared by both my partners in the Bench. I completely concur with the deduction arrived at. 2. The facts of the case and the various case laws relied upon by the parties have been deliberated upon by the Bench and, as such, the same is not repeated. 3. After threadbare discussion of the facts of the case and the points of law, the Court is of the opinion that if the order of the learned Trial Court refusing to reject the plaint un....
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....nder Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short, the Code), while the Revisional Court rejects the plaint by reversing the order of the Trial Court. 4. It is noteworthy that the learned Single Judge made this reference in relation to a distinct factual scenario where an application under Order VII Rule 11 had been filed before the Trial Court and the same was allowed. An appeal was preferred against the said order. The Appeal Court set aside the order of the Trial Court holding that the Civil Court had the jurisdiction to adjudicate the dispute and thereby refused to reject the plaint. The said order of the Appeal Court was challenged before this Court by a civil revision under Article 227 of the Constitution of India. 5. In dealing with the maintainability of the said revision before this Court, the learned Judge while making this reference, held that in such a situation, only a second appeal would lie against the order of the Appeal Court. The relevant part of the said order of the learned Judge is quoted below: "There is hardly any dispute that in view of the nature of an order passed under Order VII Rule 11 of the Code, more particularly the....
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....a) reported at (2016) 2 CHN Cal 49, where an order of rejection of the plaint was passed by the Trial Court. In the first appeal, the order of the learned Trial Judge was upheld which prompted the plaintiff to prefer a second appeal before this Court. It was held in the said case also that such an appeal should be classified as a regular second appeal. 10. In the case reported at (1980) 2 Cal LJ 161 (Surajmal Jain v. Prabir Kumar Sett), a Division Bench of this Court dealt with the question as to whether an appeal preferred against an order passed on an application under Order XXI Rule 97 of the Code should be classified as an "appeal from original decree" or as an "appeal from order." In paragraph 16 of the said judgment it was held as follows: "16. In view of the above position of law, we conclude that appeals preferred against orders passed under Rules 98 or 100 of Order 21 of the Code should be classified as appeals from orders and they are required to be heard under Order 41, Rule 11 of the Code of Civil Procedure." 11. As this Bench is confronted with a different situation involving the rejection of a plaint by a Revisional Court, the Uttam Chand Surana and Sur....
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....n avenue of appeal, the right thereof cannot be invoked. The right to appeal can be hedged with certain conditions. A bare perusal of Section 96 of the Code elucidates that an appeal shall lie from every decree passed by "any Court exercising original jurisdiction." In other words, a decree can only be deemed appealable when it emanates from the exercise of original jurisdiction; a fortiori, a decree passed outside the realm of original jurisdiction is not susceptible to appeal. While it remains true that an order passed by a Court of original jurisdiction or a revisional jurisdiction rejecting an application under Order VII Rule 11 of the Code qualifies as a deemed decree in view of the definition of "decree" provided under Section 2(2) of the Code, it must be noted that such a decree, originating in a revisional jurisdiction rather than an original jurisdiction, does not warrant an appeal. 14. In a similar vein, Section 100 of the Code provides that an appeal shall lie to the High Court "from every decree passed in appeal" by any Court subordinate to the High Court. Consequently, a decree passed in a revisional jurisdiction cannot be made appealable before this Court as a seco....
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....in Frost International Limited case. The relevant part of the judgment under reference is quoted below: "Naturally an order passed by the District Judge under Section 115A of the Code is not an appealable one nor a letters patent appeal lies if such jurisdiction is exercised by the High Court under Section 115 of the Code. Whether a second revisional application lies against the order of the District Judge under Section 115A is yet a debatable question, but it does not impinge upon or fetters the power of superintendence exercised by the High Court under Article 227 of the Constitution of India. The primary object to exercise of power of superintendence is to keep all the subordinate Courts within the precinct or boundaries of law. If the order is passed under Section 115A of the Code by the District Judge reversing the order of the Trial Court having a resultant effect that the suit is held to be non-maintainable, yet such order is passed exercising a power conferred under Section 115A of the Code and in my opinion the nature of jurisdiction exercised by the Court below should be the determining factor for further remedy." 20. It has already been noted that two Divisio....
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.... wherein the Appeal Court affirmed that decree. The decree of the Appellate Court was challenged before the Bombay High Court by filing a revisional application. A Single Judge of the High Court dismissed the revisional application which was again challenged by filing a writ petition under Article 226/227 of the Constitution of India before a Division Bench. The Division Bench reversed the order of the Single Bench. The said order of the Division Bench was challenged before the Supreme Court. In the aforesaid context, the Supreme Court grappled with the inquiry as to whether the order of the subordinate Court merged with the order of the High Court passed in revisional jurisdiction. The relevant paragraph of the said judgment is quoted below: "3. Now as is well known Section 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illega....