Dismissed

K.Vadivel v. Aththayee

Madras HC15 Mar 2024CRP/2726/2018

Case brief

AI extract

What is this about?

Civil revision against rejection of an un-numbered plaint. Relying on its earlier decision in T.Kumar, the court held that rejection of a plaint even before numbering is a deemed decree under Section 2(2) CPC, so regular appeal alone lies and revision is not maintainable.

What did the court decide?

Revision dismissed with liberty to file regular first appeal; limitation exclusion for period revision was pending; no costs.

K.Vadivel Vs Aththayee — Property and Title | Madras HC (2024)

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C.R.P.No.2726 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.03.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE S.SOUNTHAR

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C.R.P.No.2726 of 2018

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K.Vadivel ... Petitioner

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Vs.

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1.Mrs.Aththayee 2.Chellappan 3.Chinnasamy 4.Nallammal 5.The Talsildar O/o.Tahsildar, Rasipuram ...Respondents

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PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the order dated 20.08.2018 passed in O.S.No.unnumbered of 2018 on the file of District Munsif, Rasipuram.

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For Petitioner : M/s.R.Murali For Respondent 1&3 : M/s.A.G.Narasimhan For respondents 2 : died For respondent 4 : Not ready in notice For respondent 5 : Mr.V.Jeeva Giridharan Additional Government Pleader

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.2726 of 2018

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ORDER

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The Civil Revision Petition is filed challenging the order passed by the

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Trial Court rejecting the un-numbered plaint.

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The learned counsel for the petitioner assailed the impugned order on the ground that rejection of un-numbered plaint cannot be treated as a deemed decree and hence, the revision is maintainable .

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I had an occasion to consider this question, whether an order rejecting unnumbered plaint can be treated as deemed decree for the purpose of filing an appeal in T.Kumar Vs.Pavai Varam Educational Trust reported in AIR 2023

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Mad 42 = Manu/TN/9817/2022, wherein the relevant observation reads as

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follows:-

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“6. The contention of the learned counsel for

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the petitioner cannot be accepted in the light of the clear

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wordings of Section 2(2) of Code of Civil Procedure. The

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definition of the expression 'decree' contains three limbs:

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(i) The first limb of the definition defines the

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.2726 of 2018

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expression decree by words;

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(ii) The second limb of definition is an inclusive definition, it brings an order rejecting the plaint and an order determining any one of the questions under Section 144 of CPC within the fold of definition of decree.

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(iii) The third limb of definition is an exclusive definition, it excludes any adjudication from which an appeal shall lie as an appeal from an order and any order dismissing the suit for default from the purview of definition of expression 'decree'.

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7. A close scrutiny of the definition of the expression 'decree' would make it clear that the draft man himself had a doubt that order of rejection of plaint may not come within the wordly definition of the expression 'decree'. Since it will not come within the definition as found in first limb of Section 2(2) of CPC, he had chosen to bring it under the inclusive definition by including it in the second limb of definition. Therefore, Section 2(2) of Code of Civil Procedure does not make any distinction between the rejection of plaint before numbering and

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.2726 of 2018

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after numbering. In such case, an order of rejection of plaint even before numbering of the same, shall be treated as a deemed decree and consequently the revision is not maintainable, in view of availability of regular appeal remedy under Section 96 of CPC.

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8. It is also useful to refer to the judgement of this Court reported in MANU/TN/2570/2016 (A.Ramanathan vs. Tamarai Mills Ltd) wherein this Court after referring to the unreported judgement of the Division Bench of this Court made in C.R.P.(PD). No. 1211 of 2013 dated 28.08.2014 observed as follows:-

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"12. The Division Bench of this Court, in the unreported Judgment dated 28.08.2014 referred supra, has clearly held that if a Court of Law passes an order for rejection of plaint, under Order 7 Rule 11 of Civil Procedure Code, it has the force of "Decree" and therefore, regular "Appeal" lies under Civil Procedure Code and in fact, no "Revision" would lie."

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9. In view of the discussions made above, this Court has no hesitation in holding that this Civil Revision Petition challenging the order passed by the Court below rejecting the plaint in unnumbered stage is not maintainable.”

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.2726 of 2018

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In view of the law laid down in the above mentioned case law, the Civil Revision Petition is not maintainable and accordingly, the same is dismissed with liberty to the petitioner to file regular appeal before the First Appellate Court.

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It is made clear that the petitioner is entitled to exclude the time during which the civil revision petition has been pending before this Court ( i.e., from 28.08.2018 to date of receipt of copy of this order) for the purpose of calculating limitation for filing regular first appeal. No costs.

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15.03.2024

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Index : Yes / No Internet : Yes / No nr

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Note : Registry is directed to return the impugned order to the counsel for the petitioner.

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.2726 of 2018

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The learned District Munsif, Rasipuram.

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.2726 of 2018

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S.SOUNTHAR , J.

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C.R.P.No.2726 of 2018

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15.03.2024

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https://www.mhc.tn.gov.in/judis

K.Vadivel v. Aththayee

Case brief

What is this about?

What did the court decide?

K.Vadivel v. Aththayee

Case brief

What is this about?

What did the court decide?

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