RISHABH CHAND JAIN & ANOTHERversusGINESH CHANDRA JAIN

                            [2016] 2 S.C.R. 334



A                RISHABH CHAND JAIN & ANOTHER
                                     v.
                        GINESH CHANDRA JAIN
                      (Civil Appeal No. 4543 of2016)
B                             APRIL 13,2016
    (KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.]
           Code of Civil Procedure, 1908:
           ss. 2(2), 96, 115, Order XIV r. I and Order XLI - Dismissal of
c   suit - Without framing of issues - On the ground that th6 suit was
    barred by Res Judicata and the Jack of cause of action - High
    Court held that for dismissal of suit framing of issue is necessary
    whereas for rejection of plaint it is not - On appeal, held: The
    order of trial court though passed without framing of issues,
    conclusively determined the rights of the parties with regard to one
D   of the matters in controversy i.e. Res Judicata -·Hence, such order
    is a decree - The order cannot cease to be a decree on account of
    procedural irregularity of non-framing an issue - Order of trial
    court was a composite order on rejection of plaint (since there was
    no cause of action) and dismissal of suit (since the same was not
E   maintainable) - Both the wpects are covered by definition of decree
    - Thus, such order is appealable uls. 98 r!w Or. XL! of CFC -
    Revision uA 115 CPC does not lie against the same.
           s. 2(2) - Decree - Meaning and Scope of - When the court
    conclusively determines the rights of the parties with regard to any
    one or more or all of the matters in controversy, requirement of
F   decree is satisfied - Such determination can he preliminary or final
    - Rejection of plaint is deemed to be a decree - However, any
    adjudication from which an appeal lies as an appeal from an order
    or an order of dismissal for default, is not a decree.
          Allowing the appeal, the Court
G
         ·HELD: 1. In terms of Section 2(2) of CPC, if the court
    adjudicating the case, conclusively determines the rights of the
    parties with regard to any one or more or all of the matters in
    controversy in the suit, the requirement of decree is satisfied.
    Such determination can be preliminary or final. Rejection of a
H   plaint is deemed to be a decree under Section 2(2) of CPC. Only
                                    334
RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 335
                      JAIN

two orders are excluded-(i) auy adjudication from which an appeal       A
lies as an appeal from an order and (ii) any order of dismissal for
default. [Para 14] [339-G-H; 340-A]
      2. Order XLIII of CPC bas provided for appeals from
orders. The impugned order does not come under Order XLIII.
The order has conclusively determined the rights of the parties         B
with regard to one of the matters in controversy iu the suit, viz.,
Res J11dicat11. True, it is not an order passed on framing an issue.
But at the same time, there is adjudication on the controversy as
to whether the suit is barred by Res J11dicma in the sense there
is a judicial determination of the controversy after referring to
the materials on record and after bearing both sides. The
                                                                        c
impugned order dismissing the suit on the ground of Res J11dicata
does not cease to be a decree on account of a procedural
irregularity of uou-framing an issue. The court ought to treat the
decree as if the same bas been passed after framing the issue
and on adjudication thereof. In such circumstances, what is to be       D
seen is the effect and not the process. Even if there is a procedural
irregularity in the process of passing such order, if the order
passed is a decree under law, no revision lies under Section 115
of the Code in view of the specific bar under sub-Section (2)
thereof. It is only appealable under Section 96 read with Order
XLI of the Code. [Paras 14 and 15) [340-A-D]                            E

       3. The order passed by the trial court is a composite order
on rejection of the plaint as there was no cause of action and
dismissal of the suit as not maintainable on the ground of Res
J11dicata. Both aspects are covered by the definition of decree
nnder Section 2(2) of CPC and, therefore, the remedy is only            F
appeal and not revision even if there is any irregularity in passing
tlte orde1; [Para 16] [340-E-F]
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4543
of2016
                                                                        G
      From the Judgment and Order dated 14.08.2013 of the High Court
of Patna in CR No. 783 of2010
      Gaurav Agrawal, Adv., for the Appellants.
       K. Y. Muthu Kumar, Ajay Kumar, Kundan Kumar Mishra, Advs.,
for the Respondent.                                                     H
336              SUPREME COURT REPORTS                             [2016 J 2 S.C.R.



A           The Judgment of the Court was delivered by
            KURIAN, J.:        I. Leave granted.
             2. An Interlocutory Application filed in a pending suit for dismissal
      of the suit on the ground that the same is barred by Res Judica/a and
      that there is no cause of action, was allowed by the trial court before
B     commencement of the trial. The plaintiff filed a· revision before the High
      Court of Judicature at Patna taking the position that no appeal is
      maintainable as the suit has been dismissed without framing an issue.
             3. The High Court, as per the impugned order dated 14.08.2013,
      took the view that the approach taken by the trial court was not proper;
c     an issue should have been framed on maintainability and the same should
      have been tried, and thereafter only, the suit could have been dismissed,
      in case the court upheld the contentions of the defendant/applicant. In
      that view of the matter, the High Court held that the order passed by the
      trial court, dismissing the suit, was not appealable and the same was
 D    only revisable in exercise of the powers under Section l l 5 of The Civil·
      Procedure Code, 1908 (hereinafter referred to as 'Code'). Thus,
      aggrieved, the defendants are before this Court.
             4. Appellants are defendants in Title Suit No. 149 of2008 before
      the l" Sub Judge, Arrah, Bhojpur, in the State of Bihar. The suit was
 E    filed for a declaration that the Municipality survey Khatiyan entered in
      favour of defendant No. l regarding the land mentioned in Schedule 'A'
      is absolutely wrong and untrue and is not binding the plaintiff.
             5. The defendants, by application dated 20.08.2009, prayed for
      framing a preliminary issue as to "whether the suit is maintainable as
      barred by Res Judicata and constructive Res Judicata". According to
 F
      the appellants, the plaintiff having suffered an order in Title Suit No. 4 of
      l 971, the present Title Suit was not maintainable. It was also averred in
      the Application that:
             "5. That the survey of Khatiyan has not become final by the
             Municipality, and the plaintiff has no right to institute any suit against
 G
             any entry made in it, hence, the present suit is not maintainable."
              6. The defendant/plaintiff filed his objections, and thereafter, the
      Application was taken up for consideration. After hearing both the sides,
      the trial court upheld the objection that the suit was barred by the principle
      of Res Judicata. On cause of action, it was held that:
 H
RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 337
                JAIN [KURIAN, J.]

      "It is also clear from the perusal of the plaint that the plaintiff has   A
      instituted {hi-s suit for declaration of the Municipality Survey
      Khatiyan as null and void. The photo copy of the survey Khatiyan
      has been produced with the suit. It is clear from its perusal that
      this survey Khatiyan has not yet been finally published. Under
      these circumstances, no relief of declaration can be granted by
                                                                                B
      the Civil Court for declaring the said survey as null and void. The
      suit can not be filed in the Civil Court prior to final publication of
      the survey Khatiyan. Thus, it is clear that the plaintiff has no
      cause of action to institute the present suit."
      And thus, the trial court dismissed the suit ... "being barred by
      the principle of Res Judicata and the lack of cause of action"            c
      as per order dated 03.08.2010.
                                                 ,:.,.-
      -TThe plaintiff challenged the said order in Civil Revision No. 783
of 2010 before the High Court of Judicature at Patna.
       8. The High Court, in the impugned order, has taken the view that        D
for dismissal ofa suit, framing of issues is necessary whereas for rejection
of a plaint, it is not and it can be done at any stage. It was further held
that the order rejecting the plaint is appealable but dismissal of a suit,
without framing an issue and before trial as not maintainable, is not
appealable. To quote:
                                                                                E
      "In absence of specific issue, the same does not come within the
      definition of decree and the impugned order finally disposed of
      the case, so only remedy left in the case is filing revision."
      9. Heard learned Counsel appearing on both sides.
       10. Section 2 (2) of the Code defines 'decree' to mean:
                                                                                F
      "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
      wntroversy in the suit and may be either preliminary or final. It
      shall be deemed to include the rejection of a plaint and the
      determination of any question within section 144, but shall not           G
      include-
      ( a) any adjudication from which an appeal lies as an appeal from
      an order, or
      (b) any order of dismissal for default.
                                                                                H
338              SUPREME COURT REPORTS                         (2016] 2 S.C.R.



A           Explanalion.·-A decree is preliminary when fu1ther 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;"
            11. Section 96 of the Code provides for appeals from original
 B    decree:
            "'96. Appeal from original decree.-( I) Save where otherwise
            expressly provided in the body of this Code or by any other Jaw
            for the time being in force. an appeal shall lie from eve1y decree
            passed by any Cou1t exercising original jurisdiction the Court
c           authorized to hear appeals from the decisions of such Court.
            (2) An appeal may lie from an original decree passed ex pane.
            (3) No appeal shall lie from a decree passed by the Comt with the
            consent of parties.
            (4) No appeal shall lie, except on a question of law, from a decree
 D
            in any suit of the nature cognizable by Courts of Small Cause,
            when the amount or value of the subject-matter of the original
            suit does not exceed [ten thousand rupees]."
            12. Section 115 of the Code provides for revision;
            "115. Revision.-( I) The High Court may call for the record of
 E
            any case \Vhich has been decided by any Court subordinate to .:
            such High Court and in which no appeal lies thereto, and if such
            subordinate Comt appears-
                ( a) to have exercised a jurisdiction not vested in it by law, or
                (b) to have failed to exercise a jurisdiction so vested, or
 F
                (c) to have acted in the exercise of its jurisdiction illegally or
                with material irregularity,
            the High Court may make such order in the case as it thinks fit:
            Provided that the High Court shall not, under this section, vaiy or
 G          reverse any order made, or any order deciding an issue, in the
            course of a suit or other proceeding, except where the order, if it
            had been made in favour of the party applying for revision, would
            have finally disposed of the suit or other proceedings.
            (2) The High Court shall not, under this section, vary or reverse
            any decree or order against which an appeal lies either to the
 H
RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 339
      .         JAIN [KURIAN, J.]

     . High Court or to any Court subordinate thereto.                           A
       (3) A revision shall not operate as a stay of suit orother proceeding
       before the, Court except where such suit or other proceeding is
       stayed by the High Court.
      Explanation.-ln this section, the expression "any case which has
      been decided" includes any order made, or any order deciding an            B
      issue in the course of a suit or other proceeding."
      13. Order XIV Rule I provides for framing of issues:
      "1. Framing of issues.- (I) Issues arise when a material
      proposition of fact or law is affirmed by the one party and denied
      by the other.                                                              C
      (2) Material propositions are those propositions of law or fact
      which a plaintiff must allege in order to show a right to sue or a
      defendant .must allege in order to constitute his defence.
      (3) Each material proposition affirmed by one party and denied
      by the other shall form the subject of a distinct issue.                   D
      (4) issues are of two kinds:
         (a) issues of fact,
         (b) issues of law.
       (5) At the first hearing of the suit the Court shall, after reading the
       plaint and the written statements, if any, and 1 [after examination       E
       under rule 2 of Order X and after hearing the parties or their
       pleaders], ascertain upon what material propositions of fact or of
     . Jaw the parties are at variance, and shall thereupon proceed to
       frame and record the issues on which the right decision of the
       case appears to depend.
                                                                                 F
      (6) Nothing in this rule requires the Court to frame and record
      issues where the defendant at the first hearing of the suit makes
      no defence."
        14. In terms of Section 2(2) of the Code, in case, the court
adjudicating the case, conclusively determines the rights of the parties
                                                                                 G
with regard to any one or more or all of the matters in controversy in the
suit, the requirement of decree is satisfied. Such determination can be
preliminary or final. Rejection ofa plaint is deemed to be a decree under
Section 2(2) of the Code. Only two orders are excluded-(i) any
adjudication from which an appeal lies as an appeal from an order and
                                                                                 H
340                SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A      (ii) any order of dismissal for default. Order XLlll of the Code has
       provided fr,r appeals from orders. The impugned order does not come
       under Order XLlll. The order has conclusively determined the rights of
       the parties with regard to one of the matters in controversy in the suit.
       viz .. Re,11· .Jzulicala. True. it is not an order passed on fra1ning an issue.
       But at the sa111e tin1e, there is adjudication on the controversy as to
 B
       whether the suit is barred by ResJ11dica1a in the sense there is a judicial
       determination of the controversy after referring to the materials on record
       and after hearing both sides.
                15. The impugned order dismissing the suit on the ground of Re.-
       .l1ulicata does not cease to be a decree on account of a procedural
 c     irregularity of 11011-fra111 ing an issue. The court ought to treat the decree
       as if the same has been passed after framing the issue and on adjudication
       thereat: in such circumstances. What is to be seen is the effect and not
       the process. Even if there is a procedural irregularity in the process of
       passing such order. ifthe order passed is a decree under law. no revision
 D     lies under Section 115 of the Code in view of the specific bar under sub-
       Section (2) thereof. It is only appealable under Section 96 read with
       Order XLI of the Code.
              16. The order passed by the trial court is a composite order on
       rejection of the plaint as there is no cause of action and dismissal of the
 E     suit as not maintainable on the ground of Res Judicalo. Both aspects
       are covered by the definition of decree under Section 2(2) of the Code
       and, therefore, the remedy is only appeal and not revision even ifthere is
       any irregularity in passing the order.

              17. The appeal is hence allowed. The impugned order is set aside.
 F     However, the respondent/plaintiffis granted liberty to file an appeal against
       the order dated 03.08.20 I 0 passed by the High Court. In case such an
       appeal is filed within six weeks from today. the same shall be treated to
       have been filed within time, in view of the facts and circumstances of
       this case.
 G              18. The appeal is allowed as above. There shall be no order as to
       costs.
       Kalpana K. Tripathy                                            Appeal alhHvcd.




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