IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:6.11.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).SR.No.106599 of 2008 1.Smt.Alphons 2.Minor Angel Rethisha rep. By her mother and next friend ... Petitioners Vs. 1.Smt.Theresammal 2.Smt.Anthoniyammal 3.Sri.Arokiyasamy 4.Smt.Leema Rose 5.Smt.Victoriya 6.Smt.Fathima 7.Sri.Backiyaraj ... Respondents Prayer: Petition filed under Article 227 of the Constitution of India against the order passed in unnumbered O.S.SR.No.13951 of 2008 dated 12.11.2008 on the file of the Sub-Judge, Kancheepuram. For Petitioner : Mrs.Usha Raman For M/s.G.R.Swaminathan ORDER
The petitioners/plaintiffs have filed this civil revision petition in unnumbered SR.No.106599 of 2008 praying for issuance of an order to call for the records pursuant to the order passed in unnumbered O.S.SR.No.13951 of 2008 dated 12.11.2008 passed by the learned Sub Judge, Kancheepuram in rejecting the plaint filed by the petitioners/plaintiffs under Order VII Rule 1 and 3 and Section 151 of Civil Procedure Code.
2.The office of the Registry has raised an objection in regard to the maintainability of the civil revision petition filed by the petitioners/plaintiffs under Article 227 of the Constitution of India. In the return made by the Registry, it is stated that ‘the order passed by the learned Sub Judge, Kancheepuram in unnumbered O.S.SR.No.13951 of 2008 dated 12.11.2008 is an appealable one.’ To this, the learned counsel for the revision petitioner has given a reply stating that the revision petition is maintainable and that the Court has jurisdiction to entertain the suit in view of the decisions 1979 I MLJ 8, 2007 1 LW 213 and 2006 3 LW 931 presented before the trial Court and that since the trial Court has failed to exercise its jurisdiction, the revision is filed under Article 227 of the Constitution of India and as such, the relief sought for is well within the ambit of the suit.
3.The learned counsel for the revision petitioner cites the decision of this Court in Alamelu alias Chinnakannammal and others V. Manickkammal 1979 (1) MLJ 8 wherein it is held as follows:
“Having regard to the way in which the suit had come to be filed in the present case, it was clear that the plaintiff did not admit at any time that the document was executed by her or that she was a party to the document. Her case was that it was a forged one. Forged documents would not confer title on any person and it would be unnecessary to get such a document set aside in order to succeed in the prayer for declaration. The payment of court-fee is to be adjudged on the plaint allegations. Whether the allegation of forgery is correct or not will have to be gone into in the suit. The suit was properly valued.”
4.Also she relies on the decision of this Court in Minor Subha and another V. Ramu and 3 others 2006-3-L.W.931 wherein it is held thus:
“It is relevant to note that in AIR 1978 SC 1607 the said judgment the Hon’ble Supreme Court observed that the Court should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, Court-fee, if it seriously restricts the rights of a person to seek his remedies in Courts of justice, should be strictly construed. In that view, where there is a doubt reasonable, of course, the benefit must go to him who says that the lesser court fee alone be paid.”
5.Another decision is relied on the side of the revision petitioner in K.Athappan (died) and 6 others V. Palaniammal and 9 others 2007-1-L.W.213 wherein at para 13 the decision Alamelu alias Chinnakannammal and others V. Manickkammal 1979 (1) MLJ 8 has been referred to and the same has been cited by this Court earlier.
6.The substance of objection raised by the office of the Registry is that as against the order rejecting the plaint is a Decree as per Section 2(2) of the Civil Procedure Code and therefore, the revision petitioners have to prefer an appeal against the order rejecting the plaint and as such, the revision is not maintainable.
7.In fact, ‘Decree’ means a formal expression of an adjudication which the Court conclusively and finally determines the rights of the parties with regard to all or any of the matters in controversy in the suit as per decision Deep Chand V. The Land Acquisition Officer, AIR 1994 SC 1901. As a matter of fact, on passing of the decree, the rights of the parties are crystallised and unless the decree is reversed, modified or set aside the parties cannot be divested of their rights, under the decree as per the decision R.Rathinavel V. Sivaraman (1999) 4 SCC at page 89. Under the definition of “Decree” in Section 2(2), three important conditions are necessary: (i) that the adjudication must be in a given suit; (ii) that the suit must start with the plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by civil or revenue Court. A decree will have the essential following elements. (1) There should be an adjudication (2)The adjudication should determine the rights of parties regarding the matter in controversy (3)The adjudication should be in a suit and the adjudication should be formal and conclusive so far as that Court is concerned. The definition of the ‘Decree’ says that it shall include the rejection of a plaint under Order VII Rule 11 of Civil Procedure Code and the determination of any question under Section 144 of Civil Procedure Code but shall not include (a)any adjudication from which an appeal lies as an appeal from an order (refer Order 43) or (b) an order of dismissal for default (refer Order 9 Rr.2, 8 etc.). Added further, the right in controversy must be substantive right in regard to the subject matter of the suit and not merely a processual right, in the considered opinion of this Court. Also that it is not necessary in a decree that there should be a statement given by the Judge, statement is to be given by the Judge only in the judgment, as opined by this Court. To put it precisely both a decree and an order are formal expressions, but a decree will conclusively determine the rights of parties as per decision Malliah V. S, AIR 1964 AP 216. Whether an adjudication is a decree or order is one of substance as per decision Ahmed V. Hasim, 42 C 914. The real distinction between a decree and an order lies in the fact that an appeal lies in variably against a decree and also a second appeal in certain cases whereas there is no appeal against an order unless expressly provided and there is no second appeal as per decision Subarna Rekha V. Ramakrishna AIR 1968 Pat. 239 (FB).
8.At this stage, this Court pertinently recalls the observation of the Hon’ble Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur V. Swaraj Developers and others (2003) 6 Supreme Court Cases 659 at page 693 at para 31 it is observed thus:
“In Section 2, the expressions “decree” and “order” have been defined in clauses (2) ad (14) respectively. It is to be noted that it matters little that the judgment is styled as an “order”. If, in fact, it fulfills the conditions of the definition under Section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussual i.e. interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order 43 deals with “appeals from orders”. These appeals lie under Section 104 of the Code. The said section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie from any order passed in appeal under the said section. Section 104 and Order 43 Rule 1 contain a full list of appealable orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act, 1940. Section 105 relates to other orders. It, inter alia, relates to any order i.e. to appealable as well as non-appealable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Sub-section (2) deals with case of remand. This section, in fact, contemplates two things i.e. (1) regular appeal from decree; and (2) the provision relating to grant of objection relating to interim order. Order 43 Rule 1 is an integral part of Section 104.”
9.Also this Court points out the decision in Nesammal and others V. Edward and others 1999 A I H C 470 wherein it is held that ‘Order rejecting plaint, even on some other grounds not covered by O.7, R.11, is a decree and the remedy is only to file an appeal under Section 96 of Civil Procedure Code and not the revision.’
10.Moreover, in Kona Ramu V. Payakaraopette Primary Agricultural Cooperative Credit Society Limited and others 1997 A I H C 4096 it is held that ‘as against the order of rejection of plaint, the revision is not maintainable since such an order amounts to decree against which only an appeal lies.’
11.Be that as it may, on a careful consideration of the contentions advanced on the side of the learned counsel for the revision petitioner and on an overall assessment of the entire facts and circumstances of the present case in an integral fashion and bearing in mind a very important fact that the term ‘Decree’ includes within its fold the rejection of plaint, this Court comes to an inevitable conclusion that the revision filed by the revision petitioner is not maintainable and as against the rejection of plaint, only an appeal lies and in that view of the matter, this civil revision petition in unnumbered SR stage is rejected.
.11.2009
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M.VENUGOPAL,J.
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C.R.P.SR.No.106599 of 2008
6.11.2009