STATE TIMES NEWS
JAMMU: The Jammu and Kashmir and Ladakh High Court has ruled that the provision of Revision under Section 115 CPC cannot be used to challenge an order of Rejection of plaint under Order 7 Rule 11.
This is because an order passed under Order 7 Rule 11 of the CPC is considered to be a decree by legal interpretation, making it appealable under Section 96 read with Order 41 of the CPC, it clarified.
Justice Javed Iqbal Wani made this exposition while hearing revision against rejection of the plaint for mandatory injunction, citing legal bar under the Specific Relief Act. The respondents opposed revision by contending that an order passed under Order 7 Rule 11 CPC is “deemed decree” under Section 2 (2) CPC and as such, is appealable under Section 96.
After hearing Senior Advocate Rajiv Jain and Advocate Pranav Jain appearing for J&K Bank while Advocate Aseem Sawhney who appeared for the petitioner Mehvish Choudhary, the court observed that a plain reading of Section 2(2) specifically provides that the rejection of a plaint shall be deemed to be a decree. In law the word “deemed” is commonly used for creating a statutory fiction for extending the meaning to a subject matter which it does not specifically designate, the bench explained. Elucidating on the matter the bench observed that whenever the word “deemed” is used in a statute in relation to a person or a thing, it implies that the Legislature, after due consideration has exercised its judgment in conferring that status or attribute to a person or a thing. An adjudication, not fulfilling the requisites of Section 2 (2) of CPC cannot said to be “deemed”, however, by a legal fiction, certain orders and determinations are deemed to be a decree within the meaning of Section 2 (2) like an order passed under 0.7 Rule11 CPC, the bench underscored.
In order to fortify the said legal position the bench found it worthwhile to record the following observations of the Supreme Court in Chief Inspector of Mines vs. K.C. Thapper: “A question may therefore arise as to the effect of such legal fiction and the effect of such legal fiction is that a position which otherwise would not be there, is deemed to be present under certain circumstances and that an effect must therefore be given to such legal fiction and though, an order passed under 0.7 Rule.11 CPC, rejecting the plaint does not preclude the plaintiff from presenting a fresh plaint on the same cause of action, yet, Section 2 (2) of the CPC specifically provides that the rejection of the plaint shall be deemed to be a decree”.
Applying the law to the case at hand the bench said the case in question involves the rejection of plaint by the trial court under Order 7 Rule 11CPC which is deemed to be a decree and hence no revision would be possible against the rejection of the plaint, even if the trial court committed any procedural irregularity.
Declining the prayer of the petitioner for conversion of the revision petition into an appeal, Justice Wani stated there is an impediment created by Civil Courts Act, Svt. 1977 thereto in exercise of such power; as the order of rejection of plaint impugned was passed by a Sub-Judge, an appeal thereto would lie to a District Judge and not to High Court. Accordingly the bench held the petition not maintainable and dismissed it.
