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Subash Chandra Bose v/s Arulmigu Thenkalai Sreerenganatha Perumal Kovil, Represents through its Managing Trustee K.R. Shanmugam Chettiar, Sivagangai

    C.R.P.(PD) (MD) Nos. 1349, 1444 of 2017 & C.M.P.(MD) Nos. 6616, 7390 of 2017

    Decided On, 12 September 2017

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Petitioner: C. Jeyaprakash, Advocate. For the Respondent: R. Sundar Srinivasan, Advocate.



Judgment Text

(Prayer (C.R.P.(PD) (MD) No.1349 of 2017): Civil Revision Petition is filed, under Article 227 of the Constitution of India, to set aside the docket order, dated 24.02.2016, passed in C.M.A.No.3 of 2014, on the file of the Subordinate Judge, Devakottai.

C.R.P.(NPD) (MD) No.1444 of 2017: Civil Revision Petition is filed, under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order, dated 19.10.2016, passed in I.A.No.84 of 2016 in C.M.A.No.3 of 2014, on the file of the Subordinate Judge, Devakottai.)

Common Order:

1. The respondent has laid a suit against the petitioner, in O.S.No.86 of 2007, on the file of the District Munsif Court, Devakottai, for possession, rental arrears and future damages. It is found that the petitioner had also filed a written statement contesting the claim of the respondent in the suit. Meanwhile, it is found that the petitioner has preferred an application, in I.A.No.184 of 2013, seeking to reject the plaint preferred by the respondent contending that the Civil Court has no jurisdiction to entertain the suit and hence, the plaint should be rejected. The above application of the petitioner was resisted by the respondent by filing a counter and on the basis of the same, it is found that the District Munsif Court, Devakottai, on a consideration of the rival contentions put forth by the respective parties, finding that it has no jurisdiction to entertain the suit and the remedy available to the respondent is provided under the Hindu Religious and Charitable Endowment Act and accordingly, entertained the above said application preferred by the petitioner and thereby rejected the plaint.

2. Challenging the said order of rejecting the plaint, it is found that the respondent had preferred C.M.A.No.3 of 2014, on the file of the Sub Court, Devakottai. The above said civil miscellaneous appeal was stoutly contested by the petitioner on various grounds and also on the ground that the filing of the civil miscellaneous appeal against the rejection of the plaint is not sustainable in the eyes of law and the respondent would be entitled only to prefer a regular appeal as against the order of rejection of the plaint as the order of rejection of the plaint would amount to a decree as per the definition of the 'Decree' as contemplated under the Code of Civil Procedure and hence, the civil miscellaneous appeal itself is not maintainable as such. It is found that the Sub Court, Devakottai, had heard the arguments of the parties concerned on the merits of the civil miscellaneous appeal in detail and it is further found that the petitioner also filed a detailed written statement contesting the various claims of the respondent in the civil miscellaneous appeal and also questioned the maintainability of the civil miscellaneous appeal on the footing that the respondent would be entitled only to prefer a regular appeal and not the civil miscellaneous appeal as against the order of rejection of the plaint and after hearing the extensive arguments put forth by the respective parties on merits in the civil miscellaneous appeal, it is found that the Sub Court, Devakottai, had passed the impugned order, on 24.02.2016, which reads as follows:

'C.M.A. is suo moto re-opened. The appellant is directed to make amendment as Appeal instead of C.M.A. by filing petition and pay necessary Court fee in the interest of justice to decide the dispute on merit. Call for the entire records from the Lower Court. Call on 15.03.2016.'

3. Pursuant to the above said order, it is found that the respondent had also preferred I.A.No.84 of 2016 seeking to amend the appeal memorandum accordingly and despite the resistance put forth by the petitioner to the same also, the Court below had entertained the above said application and accordingly, it is found that the petitioner impugning the above said orders has come forward with the present civil revision petitions.

4. As rightly put forth by the learned counsel for the petitioner, it is found that as against the order rejecting the plaint, under Order VII Rule 1 of the Code of Civil Procedure, as the said order would only amount to a decree as per the definition of the 'Decree' outlined in the Code of Civil Procedure under Section 2(2) and it is, thus, found that as against the said order only a regular appeal would lie under Section 96 C.P.C., and not a civil miscellaneous appeal and therefore, it is found that the civil miscellaneous appeal is not maintainable as such. It is found that the Sub Court, Devakottai, had posted the civil miscellaneous appeal for arguments finally and accordingly, after hearing the arguments of both parties in detail and in fact, when it is also found that the petitioner has filed written arguments also inter alia questioning the maintainability of the civil miscellaneous appeal itself, the Sub Court, Devakottai, had chosen to pass the impugned order not on merits, but simply, by reopening the civil miscellaneous appeal, passed the order permitting the appellant to make the amendment as appeal instead of civil miscellaneous appeal by filing a petition and paying necessary Court fee, in the interest of justice, to decide the disputes involved in the matter on merits and also called for the entire records from the Lower Court.

5. The learned counsel for the respondent, in his submissions, attempted to sustain the above said impugned order of the Court below by contending that in a similar situation, this Court had entertained the same and in this connection, the decision rendered by this Court, dated 08.02.2017, in C.R.P.(MD) No.2476 of 2016, is relied upon. However, as rightly argued by the learned counsel for the petitioner, a perusal of the said decision would go to show that in the said decision even before the merits of the civil miscellaneous appeal had been canvassed in detail, by placing arguments at the threshold itself, the maintainability of the civil miscellaneous appeal was questioned and accordingly, it was held that the civil miscellaneous appeal would not lie and accordingly, only a regular appeal would lie and when that order was challenged in the said civil revision petition, it has been held that the Court below, at the inception itself, passed the order converting the civil miscellaneous appeal into a regular appeal and therefore, it is stated that the civil miscellaneous appeal is not maintainable. However, insofar as this case is concerned, as seen above, the Court below had heard the arguments in the civil miscellaneous appeal on merits and accordingly, after reserving the orders, suo motu reopened the civil miscellaneous appeal and thereafter directed the respondent to amend the civil miscellaneous appeal as a regular appeal by paying necessary Court fee in order to decide the disputes afresh. When it is the case of the petitioner all along that the civil miscellaneous appeal would not lie and only a regular appeal would lie, as rightly argued by the learned counsel for the petitioner, asfar as the filing of the regular appeal is concerned, the question of limitation would also apply and in such circumstances, it is for the respondent to establish that it has applied for the certified copy of the Judgment and Decree of the Court below within the time allowed by law and accordingly, preferred the regular appeal in time as contemplated under law. When it is found that the respondent has not endeavoured to place any material that it has complied with all the above said requirements and on the other hand, had chosen to file the civil miscellaneous appeal only as against the order passed in I.A.No.184 of 2013 and not as against the Judgment and Decree, dated 29.10.2013, passed in O.S.No.86 of 2007, it is found that the Court below had erred in suo motu ordering the conversion of the civil miscellaneous appeal into a regular appeal with a direction to the respondent to take necessary steps to amend the appeal memorandum by paying necessary Court fee. This would only, as argued by the learned counsel for the petitioner, go to give a leverage to the petitioner to bypass the requirement of law as to the filing of the regular appeal as against the Judgment and Decree passed in the suit and when the civil miscellaneous appeal already filed by the respondent erroneously would not tantamount to filing of the regular appeal as contemplated under Section 96 C.P.C., and when the regular appeal is to be made as against the order passed in the interlocutory application, in my considered opinion, the impugned order of the Court below permitting the civil miscellaneous appeal to be converted into a regular appeal without any basis and also thereby enabling the respondent to bypass the question of limitation etc., permitting him to pay the delayed Court fees on the appeal memorandum without any basis cannot be sustained in any manner.

6. It is further found that consequently, the order of the Court below in entertaining the consequential amendment application laid by the respondent in I.A.No.84 of 2016 also cannot be sustained as such and when it is found that the main order itself is not correct

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and permissible under law, the order passed in the consequential application thereto would also not lie in law. 7. The learned counsel for the petitioner, in support of his contentions, has placed reliance upon the decisions reported in 1998 (III) CTC 165 [Nesammal and another vs. Edward and another] and 2015 (3) MWN (Civil) 138 [Dhanalakshmi and others vs. Saraswathy and others]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 8. In the light of the above discussions, I hold that the impugned orders of the Court below cannot be allowed to sustain further and accordingly, they are set aside and consequently, C.M.A.No.3 of 2014, filed by the respondent, on the file of the Sub Court, Devakottai, is dismissed as not maintainable. Accordingly, both the civil revision petitions are allowed with costs. Consequently, connected miscellaneous petitions are closed.
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