PHOOL SUNDRI Vs. GURBANS SINGH

JUDGEMENT

(1.) THIS is a revision by Mt. Phool Sundri against, the order of the District Judge, bikaner and arises in the following circumstances. The applicant filed a suit against seven defendants, the last of them being the State of Rajasthan. The applicant claimed Rs. 21,000/- as damages in this suit for false imprisonment and malicious prosecution. The District Judge framed issues on the 13th of July 1954. On that date, he ordered that the plaint disclosed no cause of action against defendants Nos. 2, 3, 5 and 7. He consequently rejected the plaint as against these defendants. The present revision is against this order rejecting the plaint against four out of seven defendants.

(2.) A preliminary objection has been taken by the opposite parties and their contention is that the order in question was appealable and as no appeal was filed, this Court should not come to the rescue of the applicant in, revision. We have heard learned counsel on this preliminary point and have come to the conclusion that however we look at the order of the trial Court, it is appealable. Under Section 2 (2) of the Code of Civil Procedure, a decree includes an order rejecting a plaint and as the rejection of a plaint is a decree, it is naturally appealable under Section 98 of the Code. Learned counsel for the applicant, however, urges that this is not an order rejecting a plaint and his argument is that an order rejecting a plaint contemplated by Order 7, Rule 11 of the Civil Procedure code is an order by which the plaint is completely rejected and nothing remains before the Court. He has cited a number of cases where it has been held that plaint can only be rejected in toto under Order 7, Rule 11, Civil P. C. and cannot be rejected in part.

(3.) IN Maqsud Ahmad v. Mathra Datt and Co. , AIR 1936 Lah 1021 (A), it was observed that there was no provision in the Civil Procedure Code for rejection of the plaint in part and that if a plaint is rejected in part, revision would lie. It is enough, however, to point out that in that case the only part of the plaint, that was rejected was the part relating to the claim for interest. The plaint remained pending against all the defendants otherwise. It was in those circumstances that it was said that the plaint could not be rejected in part.