Paragraph numbers below are the court’s original numbering, recovered from the source text.
8. The High Court, in the impugned order, has taken the view that for dismissal ofa suit, framing of issues is necessary whereas for rejection of a plaint, it is not and it can be done at any stage. It was further held that the order rejecting the plaint is appealable but dismissal of a suit, without framing an issue and before trial as not maintainable, is not appealable. To quote: "In absence of specific issue, the same does not come within the definition of decree and the impugned order finally disposed of the case, so only remedy left in the case is filing revision."
9. Heard learned Counsel appearing on both sides.
10. Section 2 (2) of the Code defines 'decree' to mean: "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 wntroversy 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. c (2016] 2 S.C.R. Explanalion.·-A decree is preliminary when fu1ther 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;"
11. Section 96 of the Code provides for appeals from original decree: "'96. Appeal from original decree.-( I) Save where otherwise expressly provided in the body of this Code or by any other Jaw for the time being in force. an appeal shall lie from eve1y decree passed by any Cou1t exercising original jurisdiction the Court c authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex pane. (3) No appeal shall lie from a decree passed by the Comt 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 Cause, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees]."
12. Section 115 of the Code provides for revision; "115. Revision.-( I) The High Court may call for the record of any case \Vhich has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Comt appears- ( a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) 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, vaiy 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 RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 339 JAIN [KURIAN, J.] . High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit orother proceeding before the, Court except where such suit or other proceeding is stayed by the High Court. Explanation.-ln 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."
13. Order XIV Rule I provides for framing of issues: "1. Framing of issues.- (I) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant .must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and 1 [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of . Jaw the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence."
14. In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final. Rejection ofa plaint is deemed to be a decree under Section 2(2) of the Code. Only two orders are excluded-(i) any adjudication from which an appeal lies as an appeal from an order and c (ii) any order of dismissal for default. Order XLlll of the Code has provided fr,r appeals from orders. The impugned order does not come under Order XLlll. The order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit. viz .. Re,11· .Jzulicala. True. it is not an order passed on fra1ning an issue. But at the sa111e tin1e, there is adjudication on the controversy as to whether the suit is barred by ResJ11dica1a in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides.
15. The impugned order dismissing the suit on the ground of Re.- .l1ulicata does not cease to be a decree on account of a procedural irregularity of 11011-fra111 ing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereat: in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order. ifthe 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 XLI of the Code.
16. 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 Judicalo. 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 ifthere is any irregularity in passing the order.
17. The appeal is hence allowed. The impugned order is set aside. However, the respondent/plaintiffis granted liberty to file an appeal against the order dated 03.08.20 I 0 passed by the High Court. In case such an appeal is filed within six weeks from today. the same shall be treated to have been filed within time, in view of the facts and circumstances of this case.
18. The appeal is allowed as above. There shall be no order as to costs. Kalpana K. Tripathy Appeal alhHvcd. 1-1