Disposed

Birdha Ram v. Manohar Lal

Rajasthan HC15 Feb 2013CMA/233/2010

Case brief

AI extract

What is this about?

The single judge held that a miscellaneous appeal under Order XLIII, Rule 1 CPC against an order rejecting a plaint is not maintainable, following the Full Bench of the Andhra Pradesh High Court. The court converted the limited-bar appeal into a regular first appeal under Section 96 CPC to prevent miscarriage of justice.

What did the court decide?

The appeal under Order XLIII, Rule 1 CPC was ordered to be converted into a Civil Regular First Appeal under Section 96 CPC.

Birdha Ram Vs Manohar Lal — Property and Title | Rajasthan HC (2013)

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S.B. CIVIL MISC. APPEAL NO.233/2010

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Birdha Ram Vs.

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Manohar Lal

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Date of Judgment :: 15.02.2013

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. C.R. Jakhar, for the appellant. Mr. Bharat Boob for Mr. O.P. Boob, for respondent.

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This appeal under Order XLIII, Rule 1 CPC has been preferred against the order dated 09.11.2009 passed by the trial court, whereby, the application filed by the respondent under Order VII, Rule 11 CPC has been allowed and the suit has been dismissed as barred by limitation.

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A preliminary objection was raised by learned counsel for the respondent that appeal under Order XLIII, Rule 1 CPC was not maintainable against the said order dated 09.11.2009.

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Learned counsel for the appellant has relied on a judgment of Hon'ble Andhra Pradesh High Court in the case of Ragam Yellaiah & Ors. Vs. Chinta Shankaraiah reported at 2004 (1) Civil Court Cases 549 (AP).

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The said view taken by the learned Single Judge has been overruled by the Hon'ble Andhra Pradesh High Court vide its Full Bench judgment dated 11.04.2011 in the case of Molugu Ram Reddy & Ors. Vs. Molugu Vittal Reddy & Ors. inter alia holding that :-

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“In the result for the above reasons, the reference is answered as follows. On the true construction of Sections 2(2), 2(9), 2(14) and Sections 96, 104 and 105 of the Code of Civil Procedure, the conclusion is irresistible that a

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judgment rejecting a plaint is “decree” and is appealable under Section 96. A miscellaneous appeal against an order rejecting the plaint would not lie. There is a much consensus of judicial opinion that supports this conclusion. A Plaintiff, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under Order VII Rule 11(a) to (f), is entitled to file a regular appeal under Section 96, and a miscellaneous appeal under Section 104 read with Order XLIII Rule 1 is barred.”

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In that view of the matter, the appeal under Order XLIII, Rule 1 CPC is apparently not maintainable and the same is, therefore, liable to be dismissed.

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It is submitted by learned counsel for the appellant-plaintiff that the appeal filed under Order XLIII, Rule 1 CPC may be converted into an appeal under Section 96 CPC as the forum and limitation is the same.

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Considering the request made in this regard and the fact that the matter has remained pending before this Court after the same was filed within limitation, the said appeal is ordered to be converted into Civil Regular First Appeal under Section 96 CPC. Learned counsel for the appellant may file amended cause title in this regard alongwith requisite Court fee within a period of four weeks, as the Court fee appears to be a bit high and plaintiff is 70 years old person. On doing the needful, office may proceed in the matter.

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(ARUN BHANSALI), J.

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A.K.Chouhan/- 69

Birdha Ram v. Manohar Lal

Case brief

What is this about?

What did the court decide?

Birdha Ram v. Manohar Lal

Case brief

What is this about?

What did the court decide?

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