INTRODUCTION:
The present blog will emphasise a very captivating issue concerning the remedy in case of rejection of plaint or dismissal of application. Filing advocates often make mistakes when availing the remedy against the order of the court adjudicating the application under order 7 rule 11. What will be the remedy to the aggrieved party whose plaint has been rejected under order 7 rule 11? What remedy is available in case where an application under order 7 rule 11 is dismissed? Whether an aggrieved party can file a revision petition under Article 227 of the constitution of India? Whether the writ maintainable against the order of rejection of the plaint?
WHAT IS REJECTION OF PLAINT?
A plaint is a pleading, it is a foundation of civil litigation, via which a plaintiff will plead his relief. A suit is instituted by the presentation of plaint. A plaint should be drafted and filed in furtherance of Order 6 and 7 of Civil procedure code hereinafter mentioned as CPC.
A rejection of plaint is when plaint is dismissed by the court and the effect of such dismissal is dismissal of suit. Suit will come to an end, an order of rejection of plaint is itself ascertained as conclusive determination of rights of the parties.
Therefore, it is significant to analyze remedy that could be availed by the aggrieved person in case of rejection and non-rejection of plaint.
LAW ON REJECTION OF PLAINT:
Order 7 rule 11 of CPC envisage the grounds for the rejection of plaint. An application for the rejection of plaint is crucial and it is settled law that if any such application is filed it should be decided at the threshold before proceeding with the trial as held by supreme court in DAHIBEN VS. ARVINDBHAI KALYANJI BHANUSALI (2020) 7 SCC 366 (read more). Order 7 rule 11 of CPC provide as under:
The plaint shall be rejected in the following cases-
- where it does not disclose a cause of action;
- where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
- where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
- where the suit appears from the statement in the plaint to be barred by any law:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
A. APPEAL FOR REJECTION OF PLAINT:
An appeal is a statutory remedy for the aggrieved party to resort to the higher authority to review the impugned order which passed by the subordinate court. Under CPC all the orders are not appealable however all the decree is appealable. Section 96 of CPC read with Order 41 is appeal from original decrees and order 43 of CPC envisage the list of orders which are appealable.
What is a decree?
The term decree has been defined in section 2(2) CPC as under:
(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 controversy 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 include
- any adjudication from which an appeal lies as an appeal from an order, or
- any order of dismissal for default.
Explanation. A decree is preliminary when further 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;
Rejection of plaint- deemed decree:
Section 2(2) itself suggest that rejection of plaint is deemed decree therefore the only remedy in case of rejection of plaint is appeal under section 96. Therefore, when a plaint is rejected, it will be considered as decree hence appealable as all the decrees are appealable as aforesaid.
A decree is something which conclusively determines the rights of parties, thereby a rejection of plaint is also determination of rights of parties by the court.
“Rishabh Chand Jain & Another vs. Ginesh Chandra Jain” reported in 2016 (6) SCC 675:
“14…….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 41 of the Code.
15. 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 suit as not maintainable on the ground of res judicata. 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 if there is any irregularity in passing the order.”
B. REVISION FOR DISMISSAL OF APPLICATION:
Revision is the power of High court to review the order of subordinate court such power is different from appeal and review by the same court. Revision power is provided under section 115 of CPC.
In case when an application under order 7 rule 11 for the rejection of plaint has been dismissed the aggrieved party who filed such application cannot file an appeal against the said order. Such an order is not an adjudication of rights of the partis therefore same is not a decree. Sinch it is not a decree appeal under section 96 is not an appropriate remedy moreover it is not an appealable order under order 43 of CPC. In case of dismissal of application under order 7 rule 11 of CPC the legal remedy is revision under section 151 of CPC.
Section 115 CPC lays down revision power of high court as under:
1. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears
- to have exercised a jurisdiction not vested in it by law, or
- to have failed to exercise a jurisdiction so vested, or
- 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, vary or 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 High Court or to any Court subordinate thereto.
3. A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation–In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.
Ambit of power of appeal and revision of the High court are different as the appellate power is wider than the revision power. Appeal is a statutory right and revision is a discretionary power of the court. In case of appeal Higher court rehear the case, appreciate the evidence and re-write the case. On the other hand, in case of revision scope is limited higher court will look into procedural and jurisdictional correctness of the order of order of lower court.
C. REVISION UNDER ARTICLE 227 OF CONSTITUTION OF INDIA:
Article 227 is a constitution power of the High court; it is a supervisory jurisdiction. It is invoked to correct the illegality committed by any subordinate court. It is a discretionary power of the court, and the general rule is that when alternative remedy, as in present case revision under section 115 of CPC, is available High court do not exercise its power under Article 227.
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors., (2019)9 SCC 538:
Court opined that in cases where alternative remedy is available under CPC the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit.
It is a settled preposition of law that remedy under 227 is constitutional remedy and the same could not be barred by any statutory provision. Similarly, when a revision under 227 or a writ under 226 is filed the court have the discretion to adjudicate the same even when the alternative statutory remedy is available.
Raj Shri Agarwal @ Ram Shri Agarwal & Anr vs. Sudheer Mohan & Ors.: (Civil Appeal no. 7266 of 2022)
"That does not mean that writ petition, under Article 227 of the Constitution of India, shall not be maintainable at all. There is a difference and distinction between the entertainability and maintainability. The remedy under Article 227 of the Constitution of India available is a constitutional remedy under the Constitution of India which cannot be taken away.
D. WRIT AGAINST REJECTION OF PLAINT
A writ against the judicial order is not maintainable as the judiciary is not a state within the meaning of article 12 of the constitution therefore remedy under 32 is not available against the order of civil court.
The issue concerning the remedy under 226 has already been adjudged by the apex court and opined that writ under article 226 is not amenable against the order of civil court the remedy under 227 should be availed. Further more as stated above the remedy under 227 should also not be invoked when an alternative officious remedy is available under the CPC.
Radhey Shyam Vs. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (read more) (2015) 5 SCC 423:
Apex court observed that the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.”
ORDER 7 RULE 13 :
When a suit is dismissed on filing of rejection of plaint under order 7 rule 11, then further under order 7 rule 13 provides the remedy for another suit. Rule 13 does not preclude the plaintiff from instituting a fresh suit in respect of same cause of action .
Remedy-
- In a case where an application under order 7 rule 11 for the rejection of plaint is allowed thereby suit is dismissed the aggrieved person have statutory remedy to file an Appeal as order of the court is a “deemed decree” under section 2(2). All the decrees are appealable under section 96 of CPC.
- In a case where application for the rejection of plaint is not allowed thereby application under order 7 rule 11 is dismissed the remedy is to file a revision petition under section 115 of CPC which is statutory power of High court to check the correctness of the order of lower court.
- In a case where a petition is filed under Article 227 of the Constitution which is a Constitutional power of High court and the same could not be taken away by any statutory remedy. However, court considered it as a self-imposed restriction a better option in case where efficacious alternative remedy is available under statute.
- Similarly, writ remedy is not available under 32 as the judiciary is not state, moreover it is settled principle of law that an order of civil court can not be challenged under Article 226 of the constitution the appropriate remedy is article 227 of the Constitution which is a supervisory power of Court.
- Supervisory power of the court under 227 should also not be invoked when an efficacious and alternative statutory remedy is available.