CHAMARIN Vs. BUDHIYARIN

JUDGEMENT

(1.) THE following questions have been referred to this Bench by the learned single Judge for decision:

(2.) THE aforesaid questions arose before one of us (Raina, J.) in civil revision No. 825 of 1971 --Mst. Chamarin v. Sukhram-- in the following circumstances. The petitioner had filed a suit against the non-applicant for a declaration that she was entitled to half share in 4. 37 acres of land and for joint possession of her share. On an application filed by the defendants under Order 6, Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for better particulars an order was passed by the trial Judge on 3-7-1971 directing the petitioner to furnish better particulars. The petitioner furnished certain particulars; but as, in the opinion of the Court, proper particulars had not been furnished, the suit was dismissed by the impugned order. Aggrieved thereby, the petitioner came up in revision before this Court.

(3.) A preliminary objection was raised on behalf of the non-applicant that the order in question, being appealable, the revision petition should not be entertained. In support of his contention the petitioner relied upon the decision of the Nagpur High Court in Nazir Abbas Sujjat Ali v. Raza Azamshah Raja Suleman Shah, AIR 1941 Nag 223. In that case it was held that the order of dismissal of a suit for non-compliance with an order under Order 6, Rule 5 of the Code amounts to a decree within the meaning of Sub-section (2) of Section 2 of the Code and hence an appeal lies from it. The observations of Bose, J. (as he then was) in the last paragraph of the judgment suggest that in such cases the dismissal amounts to rejection of the plaint.