1983 PLP 1165 (CLC)

RAJA MUHAMMAD KHURSHID KHAN C. J.-Muhammad Fazil, appel lant herein, by a registered documents purchased land measuring 2 kanals 8 marlas. This sale by way of a suit was sought to be pre empted by Mst. Resham Jan, respondent .to this appeal, in the Court of Sub-Judge, Dadyal (Mirput District), for her being the mother of the vendor. The appellant-defendant in his written statement claimed rejection of the plaint on the ground that the plaint 'does not enter the cause of action. The objection prevailed and the learned Sub-Judge, vide order dated 30th December, 1979, proceeded to reject the plaint under the provisions of Order VII, rule 11 (a) of the Code of Civil Procedure. The rejection order was, however; set aside by a learned Single Judge in the High Court, in revision, vide order passed on 12th of May, 1980. This appeal by leave seeks to impeach the said judgment of the High Court.

2. The sole point which calls for determination and on which leave is granted is as to whether the revision petition before the High Court to assail the rejection order of the plaint, made by the Sub-Judge, was competent or the order under the provisions of section 2 (2) of the Code of Civil Procedure, as claimed by the appellant, is a decree and only an appeal before the District Judge was competent. In the event an appeal before the learned District Judge was only competent, how would it affect the decision made by the High Court to exercise of its revisional powers would also require thought.

3. On the issue Mr. Muhammad Yunus Surakhvi, the learned counsel for the appellant, submitted that the rejection of the plaint under Order VII, rule 11 (a) is a decree as stipulated under section 2 (2) of the Code of Civil Procedure and only an appeal was competent and the High Court was not clothed with the powers to vacate the order in exercise of its revisional jurisdiction. The High Court's order is without jurisdiction and is to be recalled.

4. As against this Mr. Noor-ul-Amin, the learned Barrister appearing on behalf of the respondent maintained that the rejection order of the plaint in the present case is not a `decree' and only a revision was competent. In his estimation as the rejection order does not conclusively determine the right of the parties with regard to any of the matters in controversy, it cannot be termed as a decree under section 2 (2) of Code of Civil Procedure. A revision to the High Court thus according to him, was competent.

5. Let us now proceed to determine the controversy. In the first instance we advert to know the meaning of the words `decree', `order' and `judgment'. 'Decree' under section 2 (2) of the Code of Civil Procedure is defined to mean :- 66 'Decree' means the formal expression of an adjudication which so far as regards the Courts expressing it, conclusively deter mines 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 plaint and the determination of any question within section 47 or section

144. But shall not include- (a) any adjudication from which any appeal lies as an appeal from an order, or (b) any order of dismissed 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." (Underlining is ours) `Order' under section 2 (14) of the Code of Civil Procedure is defined to means :- 'Order' means the formal expression of any decision of a Civil Court which is not a decree." 'Judgment' under section 2 (9) of the Code of Civil Procedure is defined to mean :- " 'Judgment. means the statement given by the Judge of the grounds of a decree or order."

6. The definition of the words 'decree', 'order' and 'judgment' in section 2 (2), 2 (14) and 2 (9) respectively of the Code of Civil Procedure makes it manifest that both the 'decree' as well as an 'order' are formal expressions of a decision of a Civil Court. But a 'decree' conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit and may be either preliminary or final. These words do not occur in the definition of the word 'order'. Distinction between a 'decree' and an order' is important because an order and a decree have different incidents in matters of appeal.

7. An adjudication, it would be noticed, must be either a decree' or an 'order' but cannot be both. Whether the adjudication in case is a 'decree' or an 'order', however, is to be determined not by reference to general principles but by expression of the Code construed in its plain and obvious sense. Nature of decision rather than the manner of its expression must determine its character as a decree or order:

8. A 'decree' is a formal document drawn up in accordance with some decision of a Court. Mere finding even though it may conclusively determine the rights of the parties with regard to some of the matters in controversy in a suit will not amount to a 'decree'. In 'Mi. Chauli alias Subhadra Devi v. Mt. Meghoo and others' (A I R 1945 All. 268) it has been observed :- "A decree is a formal document which -must be drawn up in accordance with some decision of a Court. There was no question of drawing up any formal document in the case with which we are dealing. A finding itself is not a decree." In 'Mathura Prasad and another v. Kanhaiya Lai and another' (1), it has been observed :-- "where the adjudication on a preliminary point raised in defence in a suit results in dismissal of the suit on that point alone, the adjudication amounts to a formal expression conclusively deter mining the rights of the parties, but where such an adjudica tion does not put an end to the suit, no right of appeal against such an adjudication comes into existence as the adjudication does not amount to'a decree as defined in section 2 (2). An affirmative finding on the preliminary question whether the suit for partial pre-emption was maintainable is not a decree within the meaning of section 2 (2) and therefore is not appealable."

9. The principles involved under Order VII, rule 11 are two-fold. In the first place it contemplates that a still-born suit should be properly buried at its inception so that no further time is consumed on a fruit less litigation. The rejection of a plaint takes away the very basis of the suit and the position is the same as if no suit was filed at all; the dismissal of a suit while recognising the existence of the suit indi cates its termination so that in the former case the plaintiff would not under rule 13 be precluded from filing a fresh plaint in respect of the same cause of action if he so desires ; while in the latter case generally it precludes a fresh plaint.

10. Under Order VII, rule 11 (a) of the Code of Civil Procedure the Court is bound to reject a plaint if it does not disclose a cause of action. But the plaintiff, however, has a right of filing a new suit. The rejection of a plaint in view of the provision of rule 13 of Order VII on any of the grounds mentioned in rule 11 of Order VII of the Code shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

11. Before an adjudication or order can be treated as a decree it must fulfil the following conditions : (1) There must be formal expression of adjudication. The word 'formal' in the definition of the word 'decree' is very important and cannot be ignored, and the word 'adjudication' means judi cial determination of a cause after taking into consideration the material on the record and after hearing the parties. (2) There must be 'conclusive' determination of the rights of the parties, which expression means an adjudication which brings the suit to an end as distinct from any interlocutory orders. Orders made during the pedency of a suit which the Court is required to, pass in respect of innumerable matters relating to the suit are only steps towards the final disposal of a suit and are not decrees. The words 'rights of the parties' mean (1) A I R 1941 Oudh 590 substantial rights asserted and sought to be enforced on the one side and denied by the other side. Orders which do not affect the substantial rights of the parties are procedural order and are not decrees. (3) The determination must be with regard to all or any of the matters in controversy: The matters in controversy in the suit are those matters which from the pleadings of the partie appear to be in dispute and are the subject-matter of litigation. (4) The expression of an adjudication must be in a suit. The matter came for consideration in `Pahloomal Motiram v. Abdul Quddus Behari, and others' (P L D 1971 Kar. 250). On the issue it was observed in that case :-- "Under Order VII, rule 11, Civil Procedure Code, 1908, a suit is not dismissed but. the plaint is merely rejected. This makes a big difference with respect to the consequences that follow. More over, in asking the Courts to reject a plaint under this provision the defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true in manner and form. The Court should reject the plaint under this provision only if it comes to the conclusion that even if all the allegations which ,are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief."

12. It is thus legitimate to say that for a decree there must have been an adjudication on the rights of the parties. When the rights o. the parties are left open for determination it is not a decree. Besides, the right in controversy must be a substantive right and not merely procedural right. For a finding on a procedural right is only to enable the Court to inquire into the rights in controversy in the suit. All requirements of form for a decree must be complied with.

13. Here in this case after giving our considered thought to the, question we are of the view that rejection of the plaint is not a decree. Even after rejection of the plaint the appellant was at liberty to x move a fresh suit and thus the rejection order cannot be said to have conclusively determined the rights of the parties. Therefore, in our view, the rejection of the plaint under Order VII, rule 11 (a in this case is not a decree. It is only an order which was revisable.

14. Even otherwise the High Court in exercise of its controller power under the Courts and Laws Code Act, 1949 is competent to reviser an order if it is patently illegal. In Muhammad Yusuf v. Gul Muhammad and others (P L D 1972 Azad J & K 90) it has been observed :-- "The High Court, in exercise of general powers of superintendence and control, conferred on it under Azad Jammu and Kashmir Government Act, 1970 and Azad Jammu and Kashmir Courts and Laws Code Act, which powers are much wider and larger and more comprehensive as compared to the powers of a High Court under section 115, C.'P. C., can revise suo motu or otherwise, such order where there is a gross error on the face of record or an erroneous order amounting to injustice or usurpation of jurisdiction that is specifically barred by an enactment, and set aside such order or direct further proceedings to be taken as ends of justice may require."

15. We may quote section 25(d) of Government Act, 1970 ant:, section 35 of Azad Jammu and Kashmir Courts and Laws Code Act 1949 which invest the High Court with authority of superintendence and control over the Courts subordinate to it. Section 25(d) of the Government Act reads as follows :- "High Court to superintend and control all Courts subordinate to it.-- (1) The Azad Jammu and Kashmir High Court shall superintend and control all other Courts that are subordinate to it. (2) There shall in addition to the Judicial Board and the High Court be such other Courts as are established by law. (3) A Court so established shall have such jurisdiction as is conferred on it by law and shall not have any jurisdiction which is not con ferred on it by this Act or by or under any other law." Section 35 of the Azad Jammu and Kashmir Courts and Laws Cod Act of 1949 also confers powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the administration of justice.

16. The prerogative and privilege of the High Court to superintend. and control subordinate Courts is quite independent and in addition to the powers of a High Court under section 115, C. P. C. The right to superintend and control imposes a corresponding duty to see that Courts subordinate to it do not invade the vested rights of subjects by usurping jurisdiction. This view is supported by authorities. In 'Brindaban Chander Choubey v. Gyur Chandra Ray and others' (A I R 1920 Pat. 568) it has been observed :- "It is the privilege and prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set it aside and direct such further pro ceedings to be taken as justice may require." Therefore, even if the appeal would have been incompetent the order l was well-protected under the controlling powers of the High Court.

17. We may state here that the existence or absence of cause of action is to be discovered from allegation in the plaint and not from the written statement or any other document. `M. Moosa v. Muhammad an others (P L D 1954 Sind 70) owns this view. In that case it has been observed :- "In asking the Court to decide an issue as to the absence of cause of action the defendants must be taken to admit that for the sake of argument the allegations of the plaintiff in his plaint are true modo et forma-in manner and form. In considering the present question the written statement has also not to be taken into con sideration. It is only the plaintiff s allegation which if accepted to be true must disclose that the plaintiff has a cause of action against the defendants. The Court has, while considering tire question of cause of action to apply its mind to the facts given in the plaint and not to any other matter." While considering the question of cause of action the Court should apply its mind to the facts given in the plaint and not to any other j matter.

18. For the purpose of determination whether the plaint disclose a cause of action or not the Court has to presume that every allegation of made in the plaint is true. Therefore, the power to reject a plaint under this rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved the plaintiff would not be entitled to any relief whatsoever. `L. Collins v. Charles Booth ac Co. Ltd. (A I R 1921 Sind 106) may be quoted in support of this proposition. In that case it has been observed:- "The powers under 0.7. r. 11 should be exercised with great circumspection and only if the Court is satisfied that even if the plaintiff proves all the allegations of fact in the plaint, he would still not be entitled to any relief whatever. The rule in India does not justify the rejection of a plaint in part."

19. If we look objectively into the words used in Order 7, rule 11, Code of Civil Procedure, it becomes manifest that it is not necessary that a plaintiff should enter a cause of action. All that is insisted upon under this rule is that the plaint should show a cause of action. Entry o cause of action is only a formality; if the body of the plaint discloses the cause of action no doubt the cause of action in all fairness should be entered specifically but this omission would not in any way prejudice the case of a party if otherwise the Court comes to the conclusion that it does disclose a cause of action,

20. In the instant case the plaint does disclose a cause of action, all that was being objected upon was that it does not enter the cause of action. This is no ground for rejection of plaint. Plaint can be rejected only where it fails to disclose the cause of action and not where it does not enter a cause of action. Therefore, the order of rejection of the plaint was patently illegal and could be set aside for the ends of justice to exercise of the controlling powers of the High Court.

21. Besides, it is not a case of total lack of jurisdiction. The High Court was competent to interfere and we cannot find fault with the order simply on the ground that the order is defective; if the order can saved under some other provisions of the law and does not suffer from total lack of jurisdiction. Reference may be made to `Sulaiman v. Khurshid' (198 C L C 2511). In this case it has been observed :- "Where a Court does not lack in its inherent want of jurisdiction, but the procedure of mode of hearing, it adopts, is defective or irregular and in such a position a party- joins issues and parti cipates in the proceedings without raising any objection on such defect or irregularity touching upon the jurisdiction; later on it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it."

22. Besides, it is also law that where the plaint does not disclose cause of action the Court should not reject t but should allow an amendment of the plaint. `Ahmad Hossein v. Mt. Chembelli and others' (A I R 1951 Cal. 262) owns this view. In this case it has been held :- "What then is the object of O. VII, r. I1 '1 The rule contemplate: four cases, vii. (a) where the plaint does not disclose a cause of action; (b) where the relief claimed bas been undervalued; (c) where Court fees of full value have not been supplied and (d) where the suit appears on the face of the plaint to be barred by any law. In none of these cases even if the rule had not beets enacted could a decree have been passed. In cases (a) and (d) no decree could be passed for the reason that either there was no cause of action on which a decree could be passed or that the suit was barred. In cases (b) and (c) by reason of Ss. 6 and 28, Court Fees Act, the plaint would be invalid and no Court would file or record it. In the absence of a provision like O. VII, r. I i in cases (a) and (b) the suit would have to be dismissed and in cases, (b) and (c) the plaint would not be entertained or if entertained the suit would have to be dismissed. O. VII, r. 11 provides that the suit will not be dismissed but only the plaint will be rejected. O. VII, r. 13 provides that if the plaint is so rejected the plaintiff will not be precluded by reason of such rejection from filing another suit on the same cause of action. The object of O. VII, r. 11 therefore is really to prevent the ordinary consequences of dismissal vii. to prevent the filing of another suit on the same cause of action .that is to say prevent another suit filed on the same cause of action from being barred." Unfortunately this procedure has also not been adopted in the present case. For the above-stated reasons we own the view of the learned Judge in the High Court that the plaint was incompetently rejected by the learned Sub-Judge for non-entry of the cause of action. However, the learned Judge in the High Court has misdirected himself to dispose of the case finally. We, therefore, partially accept the appeal only to the extent that the case will go back to the trial Judge to proceed with the trial in accordance with law. In view of the complex nature of the law point involved, we leave the parties to bear their own costs throughout. M. Z. M. Appeal partly accepted.