BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/03/2008 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR C.R.P.(NPD)(SR)(MD) No.47180 of 2007 S.Manoharan ... Petitioner Vs. 1.T.Mayakkannan 2.K.R.Krishnasamy ... Respondent Prayer Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 28.08.2007 made in I.A.No.266 of 2007 in O.S.No.128 of 2005, on the file of the Additional District Judge, Fast Track Court, No.2, Madurai. !For Petitioner ... Mr.R.Suriya Narayanan ^For 1st Respondent ... Mr.S.Ramachandran For 2nd Respondent ... No appearance :ORDER
The plaintiff has filed the revision petition challenging the order dated
28.08.2007 made in I.A.No.266 of 2007 in O.S.No.128 of 2005, on the file of the
Additional District Judge, Fast Track Court, No.2, Madurai.
2.The brief facts of the case of the revision petitioner are as follows:
The revision petitioner filed the suit praying for decree:
1.By declaring one of the defendants is a real owner/landlord of the suit “A”
Schedule building, entitled to receive the rent from the plaintiff and in
consequence to restrain the defendants from in any manner evicting the plaintiff
without determining the ownership of the property.
2.Direct the defendants to pay the costs of this action.
3.Such and further relives as this Honourable court may deem fit and proper in
the circumstance of the case.
It is specifically pleaded by the revision petitioner/plaintiff that he is
willing to pay the rent to the rightful owner to be determined by the Court viz.
first defendant or second defendant. The suit, therefore, was filed. A written
statement was filed by the first respondent/Second Defendant denying the plea in
the plaint. The first respondent/defendant has also filed I.A.No.266 of 2007
under Order VII Rule 11(d) read with Order XXXV Rule 5 and Section 151 of C.P.C.
to reject the plaint contending that the suit is barred by law. A counter was
filed by the revision petitioner/plaintiff. On contest the Additional District
Judge, Fast Track Court No.2, Madurai, for the reasons stated in the order
allowed the application and rejected the plaint and the suit. Aggrieved
thereby, the Civil Revision Petition is filed and is before the Court
unnumbered. The matter is before the Court for maintainability on an objection
raised by the registry. The first respondent/second defendant on notice appeared
through the counsel Shri.Ramachandran.
3. The learned counsel for the petitioner relied upon the decision of this
Court in Hindustan Petroleum Corporation Limited v. C.M.Hariraj reported in
2002(1) CTC 742 and submitted that the revision under Article 227 of the
Constitution of India is maintainable as against the order passed under Order 7
Rule 11 of C.P.C.
4. On going through the said decision reported in 2002(1) CTC 742, it is
apparent that the High Court in exercise of its power under Article 227 of the
Constitution interfered with the decision of the District Munsif Court on the
ground that the trial Court’s order rejecting the plaint is an error apparent on
the face of the record. The High Court found fault with the order of the
District Munsif going into factual aspects without even calling upon the
defendant to appear and state his defence. The Court held that the case did not
fall within the parameters of Order 7 Rule 11 of C.P.C. The most important fact
that weighed in the mind of the Court is the rejection of the plaint by the
Court below without giving notice to the opposite party. Therefore, it held
that the order of District Munsif Court is not sustainable in Law. The reason
for the High Court to resort to Article 227 is stated in paragraph 15 of the
decision and it reads as under:
“15. The power under Article 227 is an extraordinary power, and it
requires to be exercised sparingly and with extreme caution. It is a power of
superintendence reserved for this Court and is subject to its discretion and it
cannot be claimed as of right by any party. By now, it has been settled by
pronouncements of the highest Court in the land as to when this Court could
properly resort to and exercise the powers under Article 227. The well accepted
contingencies and features to warrant the exercise of such powers are:
(i) lack of jurisdiction, erroneous assumption of jurisdiction or excess of
jurisdiction or refusal to exercise jurisdiction;
(ii) Grave dereliction of duty or flagrant violation of law or error of law
apparent on the face of the record as distinguished from a mere mistake of law
or an erroneous decision of law;
(iii) Violation of the principles of natural justice;
(iv) perverse finding founded on no material whatsoever, and
(v) arbitrary or capricious exercise of authority or discretion.”
Hence, the Court exercised its extraordinary powers under Article 227 of the
Constitution of India and interfered with the perverse order of the Court below
in that case.
5. On the contrary the learned counsel for the first respondent/2nd
defendant relied on the following decisions to state that the order rejecting
the plaint under Order 7 Rule 11 of C.P.C. is a decree and an appeal is the
proper remedy.
(1) Shamsher Singh v. Rajinder Prashad reported in (1973) 2 Supreme Court
Cases 524 which held as follows.
“In the present case the plaint was rejected under Order 7, Rule 11 of the
C.P.C. Such an order amounts to a decree under Section 2(2) and there is a
right of appeal open to the plaintiff. Furthermore, in a case in which this
Court has granted special leave the question whether an appeal lies or not does
not arise. Even otherwise a second appeal would lie under Section 100 of the
C.P.C. on the ground that the decision of the first Appellate Court on the
interpretation of Section 7(iv)(c) is a question of law. There is thus no merit
in the preliminary objection.”
(2) In Satyanarayanacharlu v. Ramalingam reported in 1951 II MLJ 74 the
Full Bench presided over by Rajamannar, CJ (as he then was) held as follows.
“The Revision petition before us is against the order, dated 24th March, 1947,
rejecting the plaint. Under Section 2(2), Civil Procedure Code, an order
rejecting a plaint shall be deemed to be a decree. It was therefore open to the
petitioners to file a regular appeal against that order. As an appeal was
competent, it follows that the Revision Petition is not maintainable and must
therefore be dismissed on this ground.”
In the present case, the suit is numbered and defendant filed the application
for rejection of plaint. The objection raised by the first respondent/second
defendant is that there is a specific bar under Order 35 Rule 5 of C.P.C. Such
objection was considered by the Court below, which held that the provisions of
Order 7 Rule 11(d) is attracted and the suit was rejected accordingly.
6. On going through the order under challenge it is evident that a
reasoned order has been passed applying the provisions of law. It is an order on
merits on contest. The plaintiff if aggrieved can file an appeal against such
order, as it amounts to a decree in terms of Section 2(2) of the Civil Procedure
Code. The decision of the Supreme Court and the Full Bench of this Court applies
to the facts of the present case. The revision petitioner has not made out a
case for invoking the extraordinary power of this Court conferred by Article 227
of the Constitution of India.
7. One other decision is relied on by the learned counsel for the revision
petitioner is Dr.Ravichander v. Karunakaran reported in (2000)II M.L.J.136. In
that case partial rejection of the plaint was ordered and therefore it was
interfered by this Court under Section 115 of C.P.C. and it is not the case in
the present case.
8. In view of the decision of the Apex Court and the Full Bench decision
of this Court, as against the order passed under Order 7 Rule 11, which is a
decree in terms of Section 2(2), an appeal alone will lie and not this petition
filed under Article 227 of the Constitution of India. This Court will refrain
from exercising its powers under Article 227 in case of this nature.
9. Accordingly, the Civil Revision Petition is rejected. However, as
prayed for by the counsel for revision petitioner liberty is given to the
revision petitioner/plaintiff to contest the same in accordance with law. The
counsel for the revision petitioner sought for the return of the original order
passed by the Court below for the purpose of filing an appeal. Hence, the
registry is directed to return the same on acknowledgement. No costs.
sj
To
The Additional District Judge,
Fast Track Court No.2,
Madurai.