ARUN KUMAR Vs. N.NIRMALA DEVI

JUDGEMENT

(1.) IN this writ petition, the petitioner being the plaintiff in Title Suit No. 6 of 2004 of the court of Civil Judge (Senior Division), Rayagada has assailed the order dated 30.04.2013 passed by the said court in the aforesaid suit rejecting the plaint filed by the plaintiff in exercising jurisdiction under Order VII, Rule 11 read with Order II, Rule 2 of the Code of Civil Procedure, 1908, hereinafter referred as the "Code" for brevity.

(2.) THE facts of the case are not disputed. The plaintiff filed Civil Suit No.26 of 2003 in the court of the Civil Judge (Senior Division), Rayagada. The plaint was returned to the plaintiff on 26.03.2004. Thereafter, on the selfsame cause of action the suit, out of which the present writ petition arises, is filed. It is submitted by the learned counsel for the petitioner that the plaintiff has withdrawn the earlier suit under Order XXIII, Rule 1 of the Code with liberty to file a fresh suit thereof. The defendants after appearance filed an application under Order VII, Rule 11 read with Order II, Rule 2 of the Code. That petition was allowed and the plaint was rejected as the plaintiff is precluded from instituting the present suit.

(3.) IN interpreting this provision, this Court in Satyabadi Hota v. J.Mishra, 41 (1975) CLT 231 has held that an order rejecting a plaint on whatever ground, is a decree, as defined under Section 2 (2) of the Code and is appealable. This being the case, since alternative and efficacious remedy is available to the petitioner, the present writ application is not maintainable.