Wednesday, 13 July 2016

Whether order dismissing suit on ground of res judicata is appealable?

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

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.
REPORTABLE
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)

KURIAN, J.:
Citation:AIR 2016 SC2143

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.

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

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.”

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
4Page 5
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].”
5Page 6
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
6Page 7
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.”
7Page 8
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

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

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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