SEKAR REPORTER

Court News from Madras High Court

DURAIVAIYAPURI Mhc Advt: WHETHER THE SECOND APPEAL UNDER SECTION 100 OF CPC IS MAINTAINABLE FROM THE APPELLAT’S COURT DECREE OF REVERSING THE REJECTION OF PLAINT DECREE:-

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[19/04, 21:40] DURAIVAIYAPURI Mhc Advt: WHETHER THE SECOND APPEAL UNDER SECTION 100 OF CPC IS MAINTAINABLE FROM THE APPELLAT’S COURT DECREE OF REVERSING THE REJECTION OF PLAINT DECREE:-

Hon’ble Madras High Court held that: –

1) The 1st respondent / plaintiff filed a suit in O.S.No.49 of 2015 on the file of District Munsif Court, Mettur. In this suit, the
appellants who were defendants 1 and 2 filed an application in IA
No.3 of 2019 for rejection of plaint under Order 7 Rule 11 of CPC. This application was allowed by the Trial Court by an order dated 28.08.2019. Aggrieved by the same, the 1st respondent / plaintiff filed AS No.30 of 2019. This is in view of the fact that an order
passed in an application for rejection of plaint will fall under the
definition of a decree under Order 2 Rule 2 of CPC. The Appellate
Court has interfered with the order passed by the Trial Court
rejecting the plaint and hence, the matter has to go back to the
Trial Court to deal with the case on merits.

2) Originally against the above judgement, the appellants herein had rightly filed a Second Appeal. This is in view of the fact
that the judgement passed in the appeal will not come within the
purview of remand under order 41 Rule 23 of CPC. However, the
registry has raised a query as to how the second appeal is maintainable by assuming that the judgement passed in the appeal
will tantamount to a remand to the Trial Court. On such objections
being raised by the Registry, the learned counsel for the appellants
has converted the second appeal into Civil Miscellaneous appeal.

3.In the considered view of this Court, Civil Miscellaneous Appeal is not maintainable since the judgement in the appeal does
not come within the purview of order 41 Rule 23 of CPC and
consequently, the appeal against the order provided under Rule 43
Rule 1(u) of CPC will not apply. A regular second appeal under
Section 100 of CPC alone is maintainable.

4.In view of the above, there shall be a direction to the
Registry to number this appeal as a Second Appeal. The necessary
corrections shall be carried out by the learned counsel for Appellants in this regard in the grounds of appeal and by
incorporating the substantial questions of law. Thereafter, the
second appeal shall be posted for admission before the Hon’ble
Judge dealing with the concerned portfolio. This process shall be
completed by the Registry within a period of one week from today.

5.This Civil Miscellaneous Appeal is accordingly closed.
Consequently, the connected miscellaneous petition is also closed.

Article by

E.Duraivaiyapuri, Advocate,
YMCA Building,
Chennai – 1.
[19/04, 21:41] sekarreporter1: 👍

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