PRIYANKA BATRA Vs. SANDEEP GROVER

JUDGEMENT

(1.) THE present petition is directed against the order dated 1st July, 2007 passed by the Appellate Court. The short and interesting point involved in the present petition is as to whether the First Appellate Court hearing an appeal against the dismissal of an interim application under Order 39 Rules 1 and 2 can also examine and look into the maintainability/non -maintainability of the suit itself on the ground that it lacked pecuniary jurisdiction to entertain the plaint itself. Mr. Pradeep Bakshi, learned counsel appearing for the petitioner urges that the First Appellate Court could not have travelled beyond the controversy as was involved in the appeal impugning an order passed on the application under Order 39 Rules 1 and 2 CPC. Counsel further contends that the issue of return of plaint in the suit as envisaged under Order 7 Rule 10 CPC could only be decided by the Court of first instance trying the said suit i.e. Trial Court and not by the Appellate Court and, therefore, the directions given to this effect by the Appellate Court are ex facie illegal. Counsel has placed reliance on the judgment of this Court reported in : 1973 (9) DLT 377 titled Ram Babu and Anr. v. Jaswant Singh and also another judgment of the Hon'ble Supreme Court reported in : 1995 Supp (1) SCC 244 titled Salil Kumar Roy v. Badu Devi Bhansali (Smt) & Ors. Mr. Dinesh Goyal, learned counsel appearing for the respondent on the other hand contends that the appeal being in continuation of the suit, therefore, the Appellate Court can exercise all the powers as available to it as laid down under Order 41 CPC. The counsel placed reliance on Order 43 Rule 2, which deals with the procedure for trying the appeals under interlocutory orders. For better appreciation of his contention the said provision is reproduced as under: -

(2.) THE contention of the counsel for the respondent is that once Order 41 applies to the interlocutory order, then Rule 33 of Order 43 comes to the aid of the respondent, under which the Appellate Court can pass any order or further orders as the case may require. The counsel further contends that the issue of maintainability/non -maintainability of a particular suit goes to the very root of the matter and, therefore, it cannot be said that the Appellate Court trying an appeal even though against an interlocutory order, has no powers to examine whether the suit itself is maintainable or not. The counsel also contends that while examining as to whether there is a prima facie case or not the maintainability question can always be looked into by the first Appellate Court. Counsel thus contends that there is no illegality in the Impugned order passed by the Appellate Court giving direction to the Trial Court to return the plaint in suit to the plaintiff due to the lack of pecuniary jurisdiction.

(3.) IN the said judgment this Court has clearly held that the Appellate Court has much more limited scope when trying the appeal against the interlocutory order in comparison to when trying the appeal against a final order. The same legal position has also been propounded by the Supreme Court in Salil Kumar Roy v. Badu Devi Bhansali (Smt) & Ors. (Supra) where the Division Bench of High Court while hearing an appeal against the order of the learned Single Judge allowed an application for amendment and directed that the Single Judge has no pecuniary jurisdiction to entertain the suit. The Apex Court observed that the Division Bench of the High Court was not justified in going into question of jurisdiction specially when the said question was pending consideration before the learned Single Judge.