(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. Though this matter is listed for admission, with the consent of the parties, we have taken up the same for final disposal at the admission stage. We have heard Mr.Ravish Bhatt, learned counsel appearing for the appellant and Ms.K.J.Brahmbhatt, learned counsel appearing for the respondent.
2. This Letters Patent Appeal has been filed challenging the order of the learned Single Judge dated 25.2.2011 passed in Special Civil Application No.13531 of 2009 filed by the appellant which has been dismissed on the ground that the petitioner has a remedy of filing a Second Appeal and writ petition was not maintainable.
3. Brief facts are that the appellant-plaintiff filed Regular Civil Suit No.26 of 2008 before Principal Civil Judge, Borsad, for permanent injunction. The respondent-defendant filed an application in the suit under Order VII Rule 11 of Civil Procedure Code for rejection of the plaint on the ground that the suit was not maintainable. The trial court rejected the application for rejecting the plaint filed by the respondent under Order VII Rule 11 of Civil Procedure Code on 5.1.2009. The respondent filed Regular Civil Appeal No.10 of 2009 before the learned District and Sessions Judge, Anand under Section 96 of Civil Procedure Code. The District Judge allowed the Appeal and set aside the order dated 5.1.2009 passed by the trial court and rejected the plaint under Order VII Rule 11 of Civil Procedure Code. The appellant challenged the order passed by the District Judge, Anand dated 31.7.2009 by filing Special Civil Application No.13531 of 2009 on the ground that the order rejecting the application under Order VII Rule 7 of Civil Procedure Code did not amount to a decree, therefore, the Appeal filed by the respondent before the District Judge, Anand was not maintainable under Section 96 of Civil Procedure Code.
4. Under Section 96 of Civil Procedure Code, only appeal lies against a decree and not against an order. Where an application under Order VII Rule 11 of Civil Procedure Code, filed by the respondent itself is dismissed, it will be an order and it will not result in passing a decree by the trial court as it does not result in deciding the right or liability of the parties to the suit. The trial court, in dismissing the application of the respondent-defendant and rejecting their prayer for rejection of the plaint did not decide or determine any right or liabilities of the parties to the suit which could be said to have affected the merits of the dispute between the parties. The effect of rejection of the application under Order VII Rule 11, Civil Procedure Code was that the suit remained pending before the trial court. Therefore, no decree was passed by the trial court on 5.1.2009 and it was merely an order rejecting the application of the respondent-defendant. Against the order passed by the trial court, no appeal would lie under Section 96, Civil Procedure Code which only provides appeal against a decree. Since the application of the respondent was rejected by an order, and no decree was passed by the trial court, therefore, Appeal under Section 96 of Civil Procedure Code filed by the respondent was not maintainable as appeal lies only against a decree and not against an order.
5. The appellant challenged the order before the learned Single Judge under Article 227 of the Constitution of India. The learned Single Judge, without appreciating the scope of Section 96 of Civil Procedure and without appreciating facts in its true perspective, has held that writ petition under Section 227 of the Constitution was not maintainable and Second Appeal would lie. Against order dated 5.1.2009 rejecting the application under Order VII Rule 11 Civil Procedure Code, Regular Civil Appeal No.10 of 2009 was not maintainable before the District Judge, Anand, under Section 96, Civil Procedure Code, therefore, the order of the learned Single Judge dated 25.2.2011 cannot be upheld. Since the order passed by the learned District Judge, Anand in appeal was without jurisdiction, as the appeal was not maintainable, therefore, the learned Single Judge was not right in concluding that even without jurisdiction, order passed in appeal was required to be challenged in Second Appeal.
6. We are of the considered opinion that an order refusing to reject the plaint is not a decree and no appeal would lie against such an order under Section 96, Civil Procedure Code. The learned Single Judge did not appreciate the controversy involved in the writ petition filed under Article 227 of the Constitution.The without jurisdiction order passed by the District Judge, Anand in entertaining and deciding the appeal against an order under Section 96 C.P.C., resulted in miscarriage of justice and the learned Single Judge failed to exercise jurisdiction vested in him under Article 227 of the Constitution. Since the appeal was not maintainable, the plaintiff petitioner could invoke the supervisory jurisdiction of the High Court under Article 227 of the Constitution and he was not required to file any Second Appeal. The orders of the learned Single Judge and District Judge deserve to be set aside.
7. In the result, this Appeal succeeds and is allowed. The order passed by the learned Single Judge dated 25.2.2011 in Special Civil Application No.13531 of 2009 and the order dated 31.7.2009 passed by the learned District Judge, Anand in Regular Civil Appeal No.10 of 2009 under Section 96 of Civil Procedure Code are set aside. However, it shall be open to the respondent to seek remedy in appropriate legal forum. The parties shall bear their own costs.
(V.M.SAHAI,J) (A.J.DESAI,J) ***vcdarji