# Shrivatsa Goswami v. Anand Prasad Singh & Anr

- **Citation:** (2024) 1 ILRA 568
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-17
- **Case number:** Second Appeal No. 599 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrivatsa-goswami-v-anand-prasad-singh-anr-51375
- **Pages:** 13

## Headnote

A. Civil Law - Civil Procedure Code,1908Section 100 - Order VII Rule 11-rejection
of plaint-where an order rejecting a plaint
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
569
under Order VII Rule 11 is affirmed in
appeal, it would be subject to a further
remedy of second appeal under section
100, if the appellate court reverse the
order of rejection of plaint, the remedy
would be to file an 'appeal against an
order' under Order XLIII Rule 1(u)-In the
present case, order passed by the trial
court
rejecting
the
plaint
has
been
reversed with a direction to restore the
suit to its original number and proceed to
determine the suit, cannot be held to be a
'decree' amenable to a second appeal
under section 100 of the Code-Therefore,
appellant is permitted to convert the
present appeal filed under section 100 to
'an appeal against an order' under section
104 read with Order XLIII Rule 1(u) of the
Code.(Para 56 to 60)

The appeal is directed to modify. (E-6)

List of Cases cited:

## Text

_Characters 0–39,988 of 42,447. This is a partial read: ask again with offset=39988 for what follows._

568 INDIAN LAW REPORTS ALLAHABAD SERIES
12 and Virender Singh Hooda v.State of
Haryana-(2004) 12 SCC 588-para 35.
RERA is enacted to protect the interest of
consumer in the real estate sector. It was
enacted in the public interest."

25.

Considering
the
aforesaid
judgements it is clear that the levy of
interest as provided for in section 18 of the
Act of 2016 is compensatory in character,
and therefore can operate retrospectively,
and therefore if provisions of section 2(za)
of the Act of 2016 are deployed for levying
interest for the delay which occurred even
prior to coming into force of the said Act,
cannot be said to be illegal and arbitrary.
The levying of interest at the rate of 15%
per annum for the delay in handing over
possession has been made applicable from
2013 which is prior to coming into force of
Act of 2016 and in view the Newtech
Promoter's case, the promoter cannot shirk
from the responsibilities/ liabilities under
the Act and the contractual terms do not
have
an
overriding
effect
to
the
retrospective applicability of the authority
under the provisions of the Act.

26. The Tribunal while allowing the
appeal preferred by the respondent has duly
noticed the fact that the appellant had
admitted the entire cost of the flat in
question received from the allottee and also
admitted that the flat in question was to be
delivered by it within 24 months from the
date of allotment letter but no reason was
mentioned for not providing possession of
the flat in question within 24 months from
the date of allotment letter.

27. Tribunal also considered the fact
that as per the terms of the agreement, the
allottee has been made liable to make
payment of interest at the rate of 15% per
annum in default of payment of amount of
arrears to the appellant and, therefore, as
per section 2 (za) (ii) of the Act of 2016,
the appellant is also liable to make payment
of interest at the rate of 15% per annum to
the allottee if the appellant has defaulted in
providing possession of the flat in question
to the allottee in the stipulated period.

28. Considering the impugned order
of the Tribunal as well as the arguments of
the parties, this Court is of the considered
view that there was no infirmity in the
impugned order. The issues raised have
already been determined and answered by
the Supreme Court in the case of M/S
Newtech
Promoters
and
Developers
Private Limited Vs State of U.P (supra)
and, consequently, no substantial question
arises in the present appeal which is
accordingly dismissed.
----------
(2024) 1 ILRA 568
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Second Appeal No. 599 of 2023

Shrivatsa Goswami ...Appellant
Versus
Anand Prasad Singh & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Tarun Agrawal

Counsel for the Respondents:
Sri Dinesh Kumar Misra, Anita Singh, Sri Ishir
Sripat, Sri Ajay Kumar Singh, Sri Rahul Sripat
(Sr. Advocate)

A. Civil Law - Civil Procedure Code,1908Section 100 - Order VII Rule 11-rejection
of plaint-where an order rejecting a plaint
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
569
under Order VII Rule 11 is affirmed in
appeal, it would be subject to a further
remedy of second appeal under section
100, if the appellate court reverse the
order of rejection of plaint, the remedy
would be to file an 'appeal against an
order' under Order XLIII Rule 1(u)-In the
present case, order passed by the trial
court
rejecting
the
plaint
has
been
reversed with a direction to restore the
suit to its original number and proceed to
determine the suit, cannot be held to be a
'decree' amenable to a second appeal
under section 100 of the Code-Therefore,
appellant is permitted to convert the
present appeal filed under section 100 to
'an appeal against an order' under section
104 read with Order XLIII Rule 1(u) of the
Code.(Para 56 to 60)

The appeal is directed to modify. (E-6)

List of Cases cited:

1. St. Aubyn Vs Attny. Gen. (1952) AC 15 (HL)

2. Hunter Douglas Australia Pty Vs Perma Blinds
(1970) 44 Aust LJR 257

3. Narayanan Vs Kumaran & ors.(2004) 4 SCC
26

4. Gegannathan Vs Raju Sigamani & anr. (2012)
5 SCC 540

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. A seminal question has arisen as
regards the legal remedy available against
an order passed in an appeal arising out of
an order of rejection of plaint passed under
Order VII Rule 11 of the Civil Procedure
Code, 19081.

2. It has been pointed out that there is
considerable obfuscation on the issue with
no clear enunciation of law on the point.

3. Heard Sri Tarun Agrawal, learned
counsel for the appellant and Sri Rahul
Sripat, learned Senior Counsel appearing
along with Sri Ishir Sripat for the
respondents. Sri Ajay Kumar Singh,
learned counsel has also been heard.

4. The present appeal is directed
against the judgment and order dated
07.04.2023 passed by the Additional
District Judge, Court No. 8, Mathura in
Civil Appeal No. 67 of 2022 (Anant Prasad
Singh
Vs.
Shrivatsa
Goswami
and
Another), whereby the appeal has been
allowed and the earlier order dated
22.11.2022 passed by the trial court
rejecting the plaint under Order VII Rule 11
of the Code, has been set aside.

5. The facts giving rise to the
aforesaid controversy emanates from an
original suit being O.S. No. 83 of 2022
instituted
by
the
plaintiff-respondent,
seeking to declare as null and void a
registered gift deed dated 25.05.1986
executed in favour of the predecessor-ininterest of the defendant as well as the
subsequently registered gift deed dated
17.10.1987 executed in favour of the father
of the defendant-appellant herein.

6. The suit having been instituted in
the year 2022, years after the first gift deed
registered on 25.05.1968, the defendant
moved an application under Order VII Rule
11(d) for rejection of the plaint as being
barred by limitation.

7. The trial court allowed the
application under Order VII Rule 11 and
held the suit to be barred by limitation and
accordingly rejected the plaint.

8. The decree dated 22.11.2022
passed by the trial court rejecting the plaint,
was assailed by the plaintiff-respondents in
Civil Appeal No. 67 of 2023.
570 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The aforesaid appeal has been
allowed by an order dated 07.04.2023
setting aside the earlier order of rejection of
the plaint dated 22.11.2022, with a
direction to the trial court to restore the suit
to its original number, re-register the
Original Suit No. 83 of 2020, invite
objections/written statements from the
defendants, in addition to other issues,
frame an issue regarding limitation and
after taking evidence give a decision on all
the issues that have been framed. The lower
appellate court, also fixed a date for
appearance of the parties before the trial
court and directed that the records of the
case be remitted to the trial court for
proceeding with the case.

10. It is against the aforesaid order
dated 06.03.2023 passed by the lower
appellate court in Civil Appeal No. 67 of
2022, that the defendant-appellant has
preferred the instant appeal under Section
100 of the Code.

11. The question with regard to the
maintainability of the appeal has been
raised on behalf of the plaintiff-respondent
by pointing out that the order dated
07.04.2023 passed by the lower appellate
court being an order of remand under Order
XLI Rule 23/23-A of the Code, the same
would be amenable to an appeal from an
order as described under Order XLIII Rule
1(u) of the Code read with Section
104(1)(i).

12. It is submitted that the trial court
having disposed of the suit on the
preliminary issue of limitation and the
lower appellate court having set aside the
aforesaid judgment/decree passed by the
trial court with a direction to decide the suit
on the said preliminary issue after framing
other issues, the order passed by the lower
appellate court would be referable to its
powers under Order XLI Rule 23 of the
Code. The order would be amenable to an
appeal under Order XLIII Rule 1(u) and
cannot be subjected to a Second Appeal
under Section 100 of the Code. The present
appeal would therefore not be maintainable
and is liable to be dismissed.

13. An objection has been raised by
the Stamp Reporter, also, with regard to the
maintainability of the appeal.

14. Learned counsel for the appellant
while
responding
to
the
aforesaid
objections regarding maintainability of the
appeal, has sought to point out that the
lower appellate court while allowing the
appeal has directed the issue of limitation
to be decided after receiving evidence. In
the last paragraph of the order the appellate
court has further directed that the matter be
sent back to the trial court to decide the suit
in terms of the directions given.

15. It is submitted that it is the last
paragraph of the order that has perhaps
given rise to a confusion as to the nature of
the order dated 06.04.2023, on the basis
whereof
the
plaintiff-respondent
has
questioned the maintainability of the
present second appeal on the ground that
the impugned order is, in fact, an order of
remand under Order XLI Rule 23 of the
Code against which an appeal from order,
under Order XLIII Rule 1(u), would lie.

16. It is pointed out that the trial court
has allowed the appeal by holding that the
issue of limitation being a mixed question
of law and fact could not be decided
without receiving evidence. The question
was, therefore, left open to be decided after
framing of issues and receiving evidence.
The application of the plaintiff under Order
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
571
VII Rule 11 of the Code has been rejected
for the reason that the parameters of
consideration at this stage would be
entirely different from those available after
the framing of issues.

17. It is submitted that while deciding
the application under Order VII Rule 11 of
the Code, the court can only consider the
allegations made in the plaint; however,
while deciding the issue of limitation, the
court would necessarily have to consider
the averments made in the plaint and the
written statement as well as the evidence
led by the parties. The directions contained
in the impugned order being tantamount to
rejection of the application under Order VII
Rule 11 of the Code, there was no
requirement for the lower appellate court to
issue any further direction to the trial court,
and the directions in this regard by the
lower appellate court are superfluous.

18. It is contended that the remand
contemplated under Order XLI Rule 23 of
the Code, requires an exercise of judicial
discretion on part of the appellate authority,
and therefore the matter could be remanded
only where the appellate court while
reversing or setting aside the decree
considered it in the interest of justice to
remand the case. While passing an order
referable under Order XLI Rule 23 of the
Code, revival of proceedings before the
trial court is not automatic but contingent
upon the exercise of judicial discretion on
part of the appellate authority. In the
present case, the revival of the suit is not
seen to be contingent upon exercise of any
judicial discretion on part of the lower
appellate court regarding the demands of
interest of justice. Once the decree was
reversed the revival of the suit before the
trial court was automatic, and was not
contingent upon any further determination
on part of the lower appellate court
regarding the necessity to remand the case.

19. It is sought to be urged that an
appeal under Order XLIII Rule 1(u) of the
Code, in a case of such nature, would be a
futility inasmuch as it would not be open to
the appellant to question the exercise of
discretion by the appellate authority in
remanding the case as the revival of the suit
is automatic and not contingent upon any
judicial discretion.

20. It is further urged that Order XLI
Rule 23 of the Code, applies only in a
situation where the suit has been disposed
of upon a preliminary point. A 'preliminary
point' being distinct from a 'preliminary
issue', the court may, after framing the
issues, decide any issue as a preliminary
point. In the present case, the issues having
yet not been framed, there was no question
of the impugned judgment having been
passed on a preliminary point.

21. It is also submitted that the scope
of examination while deciding an 'issue' is
entirely different inasmuch as at that stage
the trial court is required to take into
account the averments made in the plaint
and the written statement as also the
evidence led by the parties; accordingly,
while deciding an application under Order
VII Rule 11 of the Code, the trial court
does not dispose the suit on a preliminary
point as this stage can only arise after
framing of issues. The judgment of the
lower appellate court reversing the decree
is, therefore, not referable to Order XLI
Rule 23 of the Code.

22. In order to appreciate the
controversy at hand, the relevant statutory
provisions of the Civil Procedure Code,
1908, are being extracted hereinbelow:
572 INDIAN LAW REPORTS ALLAHABAD SERIES

"Section 2(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--

(a) any adjudication from which
an appeal lies as an appeal from an order,
or

(b) 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;

96.
Appeal
from
original
decree.---
(1) Save where otherwise
expressly provided in the body of this Code
or by any other law for the time being in
force, an appeal shall lie from every decree
passed by any Court exercising original
jurisdiction to the Court authorised to hear
appeals from the decisions of such Court.

(2) An appeal may lie from an
original decree passed ex parte.

(3) No appeal shall lie from a
decree passed by the Court with the consent
of parties.

(4) No appeal shall lie, except on
a question of law, from a decree in any suit
of the nature cognizable by Courts of Small
Causes, when the amount or value of the
subject-matter of the original suit does not
exceed ten thousand rupees.

100. Second appeal.--- (1) Save
as otherwise expressly provided in the body
of this Code or by any other law for the
time being in force, an appeal shall lie to
the High Court from every decree passed in
appeal by any Court subordinate to the
High Court, if the High Court is satisfied
that the case involves a substantial question
of law.

(2) An appeal may lie under this
section from an appellate decree passed ex
parte.

(3) In an appeal under this
section, the memorandum of appeal shall
precisely state the substantial question of
law involved in the appeal.

(4) Where the High Court is
satisfied that a substantial question of law
is involved in any case, it shall formulate
that question.

(5) The appeal shall be heard on
the question so formulated and the
respondent shall, at the hearing of the
appeal, be allowed to argue that the case
does not involve such question:

Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any
other substantial question of law, not
formulated by it, if it is satisfied that the
case involves such question.

104. Orders from which appeal
lies.--- (1) An appeal shall lie from the
following orders, and save as otherwise
expressly provided in the body of this Code
or by any law for the time being in force,
from no other orders:-

(ff) an order under Section 35-A;

(ffa) an order under Section 91 or
section 92 refusing leave to institute a suit
of the nature referred to in Section 91 or
Section 92, as the case may be;

(g) an order under Section 95;

(h) an order under any of the
provisions of this Code imposing a fine or
directing the arrest or detention in the civil
prison of any person except where such
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
573
arrest or detention is in execution of a
decree;

(i) any order made under rules
from which an appeal is expressly
allowed by rules:

Provided that no appeal shall lie
against any order specified in clause (ff)
save on the ground that no order, or an
order for the payment of a less amount,
ought to have been made.

(2) No appeal shall lie from any
order passed in appeal under this section.

Order VII Rule 11:

11. Rejection of plaint.--The plaint
shall be rejected in the following cases:-

(a) where it does not disclose a cause
of action;

(b) 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;

(c) where the relief claimed is
properly valued, but the plaint is written
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;

(d) where the suit appears from the
statement in the plaint to be barred by
any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails comply
with the provision of Rule 9;

Provided that the time fixed by the
Court for the correction of the valuation or
supplying of the requisite stamp-papers
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 from correcting the
valuation or supplying the requisite stamppapers, 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.

Order XLI Rule 23:

Remand
of
case
by Appellate
Court.--Where the Court from whose
decree an appeal is preferred has disposed
of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order remand
the case, and may further direct what issue
or issues shall be tried in the case so
remanded, and shall send a copy of its
judgment and order to the Court from
whose decree the appeal is preferred, with
directions to re-admit the suit under its
original number in the register of civil
suits, and proceed to determine the suit;
and the evidence (if any) recorded during
the original trial shall, subject to all just
exceptions, be evidence during the trial
after remand.

Order XLIII Rule 1(u):

Appeals from orders.---An appeal
shall lie from the following orders under
the provisions of Section 104, namely:--

(a) ...

...

(u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an
appeal would lie from the decree of the
Appellant Court;

..."

23. It would also be relevant to refer
to the Notification dated Allahabad, April
27, 1957 published in the U.P. Gazette, Part
II, dated June 1, 1957, whereby the High
Court of Judicature at Allahabad had made
certain amendments in the First Schedule
of the Code of Civil Procedure, 1908, in
exercise of powers under Section 122 and
with
the
previous
approval
of
the
Government of the State as required by
574 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 126 of the Code. The amendment
relating to Order XLI Rule 23 is as follows:

"(i) Insert the following after the
words "and the decree is reversed in
appeal", namely: "or where the Appellate
Court while reversing or setting aside the
decree
under
appeal
considers
it
necessary in the interest of justice to
remand the case, it"; and

(ii) Delete the words "the Appellate
Court" occurring thereafter and delete
also the words "if it thinks fit", occurring
after the words "may"."

24. The term 'decree' has been
defined under Section 2(2) of the Code,
wherein it has been provided that the
rejection of the plaint shall be deemed to
be included within the definition of the
term.

25. The Code has defined the term
'decree' under Section 2(2) to include the
determination of any preliminary matter
and the said definition is extended to an
order rejecting a plaint even though it
may not be a decision on merits and the
rights of the parties may not have been
adjudicated finally.

26. The order, aforementioned, by
reason of Section 2(2), would be deemed
to be a 'decree' and hence would be
appealable under Section 96 as an appeal
from original decree. It is to be treated as
a decree as the effect of the order is
denial of the reliefs sought, and therefore a
virtual dismissal of the suit.

27. An order rejecting a plaint, even
otherwise, would have to be held to be a
decree, as it amounts to refusal of any relief
to the plaintiff in the particular suit. This
would lead to dismissal of the suit, and
would, therefore, be a decree within the
main part of the definition under Section
2(2) also.

28. The distinction which is sought to
be borne in mind is that under the deeming
clause of Section 2(2), what is held to be a
'decree' is not the 'order', which may be of
an interlocutory nature, but its effect in the
ultimate or final dismissal of the suit,
which, under law, disposes of the suit,
though by a decision on a particular issue,
as distinguished from an adjudication on all
the issues.

29. A deeming provision is generally
utilised in statutory enactment to deem
what is not there in reality, thereby
requiring the subject matter to be treated as
if it were. There are, however, authorities to
show that a deeming fiction can also be
used to put beyond doubt a particular
construction that might otherwise be
uncertain or to give to the statutory
language a comprehensive description so
that it includes what is obvious.

30. Stroud's Judicial Dictionary of
Words and Phrases2, defines 'deemed' as
follows:

"'Deemed' - as used in statutory
definitions "to extend the denotation of the
defined term to things it would not in
ordinary parlance denote", is often a
convenient device for reducing the verbiage
or an enactment, but that does not mean
that wherever it is used it has that effect; to
deem means simply to judge or reach a
conclusion about something, and the words
"deem" and "deemed" when used in a
statute thus simply state the effect or
meaning which some matter or things
has-the way in which it is to be adjudged;
this need not import artificiality or fiction;
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
575
it may simply be the statement of an
indisputable conclusion."

31. The meaning of word 'deemed' as
used in statutory definitions, has been
explained by Lord Radcliffe in St. Aubyn
Vs. Attorney General3, in the following
words:

"... The word "deemed" is used a
great
deal
in
modern
legislation.
Sometimes it is used to impose for the
purposes
of
a
statute
an
artificial
construction of a word or phrase that would
not otherwise prevail. Sometimes it is used
to
put
beyond
doubt
a
particular
construction that might otherwise be
uncertain. Sometimes it is used to give a
comprehensive description that includes
what is obvious, what is uncertain and what
is, in the ordinary sense, impossible."

32. The use of the word "deemed" in
statutory definitions was explained by
Windener,
J.,
in
Hunter
Douglas
Australia Pty. v. Perma Blinds4, by
stating:-

"14.
'Deemed',
as
used
in
statutory definitions [is meant]

'to extend the denotation of the
defined term to things it would not in
ordinary parlance denote, is often a
convenient devise for reducing the verbiage
of an enactment, but that does not mean
that wherever it is used it has that effect; to
deem means simply to judge or reach a
conclusion about something, and the words
"deem" and "deemed" when used in a
statute thus simply state the effect or
meaning which some matter or thing has -
the way in which it is to be adjudged; this
need not import artificiality or fiction; it
may simply be the statement of an
undisputable conclusion'."

33. It may, therefore, be inferred that
the use of a deeming clause in a statutory
enactment is not always for the purpose of
creating a fiction but, at times, to state
something which follows as an obvious
consequence. The rejection of a plaint has a
natural consequence of the reliefs being
denied. It is possibly for this reason that the
rejection of a plaint has been held to be a
'decree' in terms of the deeming clause
under Section 2(2) of the Code.

34. Order VII Rule 11 relates to
rejection of the plaint, on the grounds
specified therein. The conditions precedent
to exercise of the said power are stringent,
and the power to reject the plaint can be
exercised only upon fulfilment of the
conditions provided therein. In order to
ascertain whether any of the grounds
specified under Order VII Rule 11 are
attracted, the court has to read averments in
conjunction with documents relied upon in
the plaint as a whole without addition or
subtraction of any word. In substance, what
is to be seen at that stage are only the
averments made in the plaint, and the
pleadings of the defendants in the written
statement would be wholly irrelevant for
the purpose.

35. The effect of rejection of a plaint
is drastic, as in a way, it results in the
conclusion of the proceedings. It is perhaps
for this reason that an order rejecting the
plaint has been held to be a 'deemed decree'
under Section 2(2) of the Code.

36. The rejection of plaint under
Order VII Rule 11 having been held to be
covered within the definition of a 'decree'
under Section 2(2), under its deeming
clause, the said order becomes amenable to
appeal under Section 96 of the Code which
provides for an appeal from original decree.
576 INDIAN LAW REPORTS ALLAHABAD SERIES

37. Although, an order rejecting a
plaint is neither an adjudication on merits
nor it conclusively determines the rights of
the party with regard to all or any of the
matters in controversy in the suit, yet
insofar as the court passing the order is
concerned, it amounts to rejection of the
case sought to be set up by the plaintiff and
resultantly the right of the plaintiff to
pursue the case stands exterminated. The
order rejecting a plaint, thus, in a way, can
be held to have a conclusive effect on the
right of the plaintiff to prosecute that
particular suit any further. The conferment
of the status of a decree, adds a finality to
the said order. It makes it binding upon the
parties.

38. In the instant case, the trial court,
by means of the order under Order VII Rule
11, rejected the plaint as being barred by
law, i.e. limitation. Therefore, the order can
be seen as conclusively determining the
rights of the parties with regard to one of
the matters in controversy in the suit, i.e.
limitation. Although, it was not an order
passed after framing an issue, at the same
time, there was adjudication on the
question as to whether the suit was barred
by limitation. The deeming clause under
sub-section (2) of Section 2 of the Code,
thus, becomes attracted, and the order
passed by the trial court would have to be
held to be a 'decree' within the meaning of
the term as defined under the sub-section.

39. It is this order of the trial court
rejecting the plaint, which was carried in
appeal under Section 96 of the Code, and
the said appeal has been allowed in terms
of the order dated 07.04.2023, against
which the present appeal has been filed.

40. If, it were a situation where the
appeal filed against the order rejecting the
plaint under Order VII Rule 11, had been
dismissed, it would be effectively an order
determining the rights of the parties and
concluding the proceedings. The order
passed in the appeal would, therefore, again
be a 'decree' within the meaning of the
Section 2(2), and the same would be
subject to a further appeal under Section
100 of the Code.

41. However, in the present case, the
appeal filed against the order of the trial
court rejecting the plaint under Order VII
Rule 11, having been allowed, and the
matter having been remitted to the trial
court for fresh adjudication, a question has
arisen as to whether the order passed in the
appeal, can be held to be a 'decree' within
the meaning of Section 2(2), so as to be
amenable to a further appeal under Section
100, or it would have to be held to be an
order of remand referable to the provisions
under Order XLI Rule 23 so as to be
subject to an 'appeal from an order' under
Section 104 read with Order XLIII Rule
1(u) of the Code.

42. The order passed by the lower
appellate court allowing the appeal and
setting aside the order passed by the trial
court rejecting the plaint under Order VII
Rule 11 with a further direction to reregister the suit, invite objections from the
defendants for framing issues and after
taking evidence give a decision on all the
issues, cannot be held to be a judicial
determination conclusively determining the
rights of the parties. The order, therefore,
cannot be held to be a 'decree' so as to
amenable to a further appeal under Section
100 of the Code.

43. The question which remains for
consideration is as to whether the order
passed by the lower appellate court can be
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
577
held to be an order of remand so as to be
amenable to an appeal in terms of the
provisions of Section 104 of the Code read
with Order XLI Rule 23.

44. Rule 23 of Order XLI, as it reads
consequent to the Allahabad Amendment,
is as under:

"Remand of case by Appellate
Court.--Where the court from whose
decree an appeal is preferred has disposed
of the suit upon a preliminary point and the
decree is reversed in appeal or where the
appellate court while reversing or setting
aside the decree under appeal considers it
necessary in the interest of justice to
remand the case, it may, by order remand
the case, and may further direct what issue
or issues shall be tried in the case so
remanded, and shall send the copy of its
judgment and order to the court from
whose decree the appeal is preferred, with
directions to readmit the suit under its
original number in the register of civil
suits, and proceed to determine the suit;
and the evidence (if any) recorded during
the original trial shall, subject to all just
exceptions, be evidenced during the trial
after remand."

45. A plain reading of the aforesaid
provision indicates that Rule 23 (as
amended by the Allahabad Amendment),
contemplates a remand in the following
two situations:

I. where the court from whose decree
an appeal is preferred has disposed of the
suit upon a preliminary point and the
decree is reversed in appeal; or

II. where the appellate court while
reversing or setting aside a decree under
appeal considers it necessary in the interest
of justice to remand the case.

46. The Allahabad Amendment to
Order XLI Rule 23 of the Code has thus
widened the scope of the provision,
whereas formerly a remand could be made
only in a case where the decree of the lower
court disposing the case had proceeded on a
preliminary point, the position consequent
to the amendment is that a remand order
can also be passed in a case where the court
considers it necessary in the interest of
justice to do so. In other words, a remand
order can be passed in a case which was
disposed of on a preliminary point as also
in a case where the court is of the opinion
that the interest of justice requires remand
of the case.

47. Under the unamended provision, a
remand could be made where the suit had
been decided on a preliminary issue and
there was no adjudication in respect of the
other pleas, whereas in a case covered by
the amended provision a remand can also
be made where there has been an
adjudication on all the pleas by lower court
and the court considers it necessary in the
interest of justice to remand the case for
rehearing.

48. The first appellate court while
reversing a decree arising out of a
preliminary point must as of necessity
remand the case. This power to remand the
case flows from sub-section (1)(b) of
Section 107 of the Code, as also from
Order XLI Rule 23, as referred above.

49. The contention that rejection of
the application under Order VII Rule 11 of
the Code, at the appellate stage, would
result in automatic restoration of the suit
without the appellate court being required
to pass any specific order of remand,
suffers from an inherent fallacy which is
not difficult to fathom.
578 INDIAN LAW REPORTS ALLAHABAD SERIES

50. The trial court becomes functus
officio once it passes a decree. An order
rejecting the plaint is a decree by virtue of
the deeming clause under Section 2(2) of
the Code. Therefore, the trial court, having
once passed the decree, would not
automatically regain seisin over the matter
unless it is remanded back to it. This
possibly explains the insertion of Rule 26A under Order XLI, by the Amending Act
of 1976, requiring the appellate court to fix
a date for the appearance of the parties
before the trial court consequent to the
remand. This also flows from the language
of Order XLI Rule 43, which requires the
appellate court to issue directions to the
trial court to re-admit the suit under its
original number in the register of civil suits
and proceed to determine the suit. This
leaves no room for doubt that there is no
automatic revival or restoration of the suit
unless an order of remand is passed. Thus,
whenever a decree of the trial court is
reversed by the appellate court, unless there
is any express order of remand, the trial
court would not regain seisin of the matter
and would continue to remain functus
officio in that regard.

51. There being no provision in the
Code providing automatic revival of the
suit, the order of the appellate court
directing re-admission of the suit, cannot be
said to be superfluous; rather the direction
to re-admit the suit under its original
number in the register of civil suits and to
proceed to determine the suit, would be
necessary together with the order of
remand.

52. In every case where a decree on a
preliminary point is reversed, the matter
would, as of necessity, have to be returned
to the court below for completion of the
trial. It is for this reason that Order XVI
Rule 23 contemplates an order of remand.
If the resumption of the suit were
automatic, a provision of remand may not
have been necessary under Rule 23 of
Order XLI.

53. To address the question which has
fallen for consideration regarding the
maintainability of the present second
appeal, it would be necessary to examine
the remedies available consequent to an
order being passed by the civil court under
the provisions of the Code. A close reading
of the provisions of the Code would lead to
an inference that the remedies available
under the Code would be the following:

(i) where the order is a 'decree' as
defined under Section 2(2) of the Code, it
would be subject to an appeal under
Section 96, with a further remedy of a
second appeal under Section 100 of the
Code;

(ii) where the order is not a 'decree' but
is an order of the nature as described under
Section 104 read with Rule 1 of Order
XLIII, it would be subject to an appeal as
an appeal from an order under Section 104
read with Order XLIII Rule 1 of the Code,
without any provision for a further second
appeal.

(iii) where the order is neither a
'decree' nor an 'appealable order' as
specified under Section 104 read with
Order XLIII Rule 1, it may be subject to a
revision under Section 115, subject to
fulfilment of the requirements of the
section.

54. A noticeable difference between a
'decree appealable under Section 96' and an
order 'appealable under Section 104' is that
the remedy of a second appeal is available
against a decree passed in an appeal under
Section 96, whereas no further appeal lies
1 All. Shrivatsa Goswami Vs. Anand Prasad Singh & Anr.
579
from an order in an appeal under Section
104 read with Order XLIII Rule 1 of the
Code.

55. The position which emerges from
the foregoing discussion, in regard to the
remedies available against an order passed
in an appeal arising out of an order
rejecting a plaint under Order VII Rule 11
of the Code, may thus be summarised in the
following manner:

I. In a case where the application
under Order VII Rule 11 has been allowed
by the trial court and as a consequence the
suit has been dismissed, and the said order
is affirmed in appeal, the order of the first
appellate court assumes the character of a
'decree' in terms of Section 2(2) of the
Code, and a second appeal under Section
100 would lie against such a decree.

II. Alternatively, where in an appeal
filed against an order of the trial court
rejecting the plaint under Order VII Rule
11, the first appellate court reverses the
order thereby restoring the suit to be tried
on merits, it would in effect be an order of
remand referable to Order XLI Rule 23,
and would be subject to an appeal under
Order XLIII Rule 1(u).

The appeal in latter case, though not a
second appeal under Section 100, would
nonetheless be required to be admitted and
heard on a substantial question of law and
on grounds on which a second appeal is
heard under Section 100, as has been laid
down in Narayanan Vs. Kumaran and
Others5 and Gegannathan Vs. Raju
Sigamani and Another6.

56. Putting it succinctly, it may be
stated as a legal proposition that where an
order rejecting a plaint under Order VII
Rule 11 is affirmed in appeal, it would be
subject to a further remedy of second
appeal under Section 100, alternatively, if
the appellate court reverses the order of
rejection of the plaint, the remedy would be
to file an 'appeal against an order' under
Order XLIII Rule 1(u).

57. Applying the aforestated legal
principles, to the facts of the present case,
leads to the inference that the order dated
07.04.2023 passed in Civil Appeal No. 67
of 2022 in terms of which the order dated
22.11.2022 passed by the trial court
rejecting the plaint under Order VII Rule 11
of the Code, has been reversed with a
direction to restore the suit to its original
number and proceed to determine the suit,
cannot be held to be a 'decree' amenable to
a second appeal under Section 100 of the
Code.

58. The order in question would have
to be held a 'remand order' covered under
Order XLI Rule 23 of the Code (as read in
terms of the Allahabad Amendment), and it
would be subject to the remedy of an
'appeal from an order' under Section 104
read with Order XLIII Rule 1(u) of the
Code.

59. The objection of the Stamp
Reporter, in this regard, therefore, cannot
be held to be unsustainable.

60. Counsel for the appellant is
permitted to convert the present appeal
filed under Section 100 to 'an appeal
against an order' under Section 104 read
with Order XLIII Rule 1(u) of the Code.

61. A week's time is granted to the
appellant to file a fresh memorandum of
appeal, if so required.

62. Office is directed to re-register the
appeal as an 'appeal from an order' under
580 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 104 read with Order XLIII Rule
1(u) of the Code, and place it as fresh,
before
the
appropriate
Bench,
on
30.01.2024.
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(2024) 1 ILRA 580
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.