AMIT GOSWAMI Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) Trial Court/ Civil Judge (S.D.), Jhansi on 17.05.2011 rejected the plaint on the Munsrim's report to the effect that on the face of it, suit was barred by time. Due to objections of the Munsrim, the suit had not been registered as such but only as R.P. Misc. 43 of 2011, Amit Goswami Vs. Bhgwati Prasad. As held by the Supreme Court in Shamsher Singh v. Rajinder Prashad, 1973 AIR(SC) 2384 rejection of plaint under Order VII Rule 11, C.P.C. amounts to decree. The mere fact that the suit had not been registered as original suit will not make any difference. Normally only after clearance of preliminary objections by the office, suits are registered as original suits. Against the said order, Misc. Civil Appeal was filed in the form of Misc. Civil Appeal No.55 of 2011. A.D.J., Court No.15, Jhansi dismissed the appeal on 12.02.2013, hence this writ petition.

(2.) In my opinion, the impugned decree dated 17.05.2011 was appealable and after decision of the first appeal, second appeal is maintainable in this Court. Accordingly, writ petition is dismissed on the ground of alternative remedy of second appeal.

(3.) It is further directed that Misc. Civil Appeal No.55 of 2011, Amit Goswami Vs. Bhagwati Prasad, which was dismissed by A.D.J., Court No.15, Jhansi on 12.02.2013 shall be treated to be a regular civil appeal under Section 96, C.P.C. Decree shall be prepared after directing the petitioner to pay requisite court fees and thereafter petitioner may be at liberty to file second appeal in this court.