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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4543  OF 2016 (Arising out of S.L.P.(C) No. 538 of 2014)

RISHABH CHAND JAIN & ANOTHER ...  APPELLANT (S)

VERSUS

GINESH CHANDRA JAIN      ... RESPONDENT (S)

J  U  D  G  M  E  N  T

KURIAN, J.:

Leave granted.  

2. An Interlocutory Application filed in a pending suit for  

dismissal of the suit on the ground that the same is barred by  

Res Judicata and that there is no cause of action, was allowed  

by  the  trial  court  before  commencement  of  the  trial.  The  

plaintiff filed a revision before the High Court of Judicature at  

Patna taking the position that no appeal is maintainable as the  

suit has been dismissed without framing an issue.  

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3. The  High  Court,  as  per  the  impugned  order  dated  

14.08.2013, took the view that the approach taken by the trial  

court was not proper;  an issue should have been framed on  

maintainability  and  the  same  should  have  been  tried,  and  

thereafter only, the suit could have been dismissed, in case the  

court upheld the contentions of the defendant/applicant. In that  

view of the matter, the High Court held that the order passed  

by the trial court, dismissing the suit, was not appealable and  

the same was only revisable in exercise of the powers under  

Section  115  of  The  Civil  Procedure  Code,  1908  (hereinafter  

referred  to  as  ‘Code’).  Thus,  aggrieved,  the  defendants  are  

before this Court.

4. Appellants are defendants in Title Suit No. 149 of 2008  

before the 1st Sub Judge, Arrah, Bhojpur, in the State of Bihar.  

The suit was filed for a declaration that the Municipality survey  

Khatiyan  entered  in  favour  of  defendant  No.1  regarding  the  

land mentioned in Schedule ‘A’ is absolutely wrong and untrue  

and is not binding the plaintiff.

5. The  defendants,  by  application  dated  20.08.2009,  

prayed for framing a preliminary issue as to “whether the suit is  

maintainable as barred by  Res Judicata and constructive  Res  

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Judicata”.  According  to  the  appellants,  the  plaintiff  having  

suffered an order in Title Suit No. 4 of 1971, the present Title  

Suit  was  not  maintainable.  It  was  also  averred  in  the  

Application that:

“5. That the survey of Khatiyan has not become  final by the Municipality, and the plaintiff has no  right to institute any suit against any entry made  in it, hence, the present suit is not maintainable.”

6. The  defendant/plaintiff  filed  his  objections,  and  

thereafter, the Application was taken up for consideration. After  

hearing both the sides, the trial court upheld the objection that  

the suit was barred by the principle of Res Judicata.  On cause  

of action, it was held that:

“It is also clear from the perusal of the plaint that  the plaintiff has instituted this suit for declaration  of  the  Municipality  Survey  Khatiyan  as  null  and  void. The photo copy of the survey Khatiyan has  been produced with the suit.  It  is  clear  from its  perusal that this survey Khatiyan has not yet been  finally  published.  Under  these circumstances,  no  relief  of  declaration can be granted by the Civil  Court  for  declaring  the  said  survey  as  null  and  void.  The suit can not be filed in the Civil  Court  prior  to  final  publication of  the survey Khatiyan.  Thus, it is clear that the plaintiff has no cause of  action to institute the present suit.”

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And  thus,  the  trial  court  dismissed  the  suit  … “being  

barred by the principle of Res Judicata and the lack of cause of   

action” as per order dated 03.08.2010.

7.  The plaintiff challenged the said order in Civil Revision  

No. 783 of 2010 before the High Court of Judicature at Patna.

8. The High Court, in the impugned order, has taken the  

view that for dismissal of a 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  controversy  in  the  suit  and  may  be  either  preliminary or final. It shall be deemed to include  

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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;”

11. Section  96  of  the  Code  provides  for  appeals  from  

original decree:

“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  the  Court  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  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  Cause,  when  the  amount  or  value  of  the  subject-matter  of  the  original  suit  does  not  exceed  [ten  thousand  rupees].”

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12. Section 115 of the Code provides for revision;

“115. Revision.-(1) The High Court may call for  the record of any case which has been decided by  any Court subordinate to such High Court and in  which  no  appeal  lies  thereto,  and  if  such  subordinate Court 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, vary 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 High Court or to any  Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or  other proceeding before the , Court except where  such suit or other proceeding is stayed by the High  Court.

Explanation.-In  this  section,  the  expression  “any case which has been decided” includes any  

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order made, or any order deciding an issue in the  course of a suit or other proceeding.”

13. Order XIV Rule 1 provides for framing of issues:

“1. Framing of issues.-  (1) 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  law 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.”

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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 of a  

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 (ii) any order of  

dismissal for default. Order XLIII of the Code has provided for  

appeals from orders. The impugned order does not come under  

Order XLIII. The order has conclusively determined the rights of  

the parties with regard to one of the matters in controversy in  

the suit, viz.,  Res Judicata. True, it is not an order passed on  

framing an issue. But at the same time, there is adjudication on  

the controversy as to whether the suit is barred by Res Judicata  

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 Res Judicata does not cease to be a decree on account of a  

procedural irregularity of non-framing an issue. The court ought  

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to  treat  the  decree  as  if  the  same  has  been  passed  after  

framing  the  issue  and  on  adjudication  thereof,  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, if  the 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  

Judicata. 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 if there is any irregularity in  

passing the order.

17. The appeal is hence allowed. The impugned order is set  

aside. However, the respondent/plaintiff is granted liberty to file  

an appeal against the order dated 03.08.2010 passed by the  

High Court.  In  case such an appeal  is  filed within six weeks  

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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.

........................................J.    (KURIAN JOSEPH)

......………………………………J. (ROHINTON FALI NARIMAN)

New Delhi; April 13, 2016.   

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