C.P.C. Return of plaint for want of statutory notice. Revision under Section 115 is NOT maintainable. Appeal under Section 96 or under Order 43 is also NOT maintainable. Karnataka High Court. 6 March 2021

NOTE: In view of this judgement, against return of plaint on technical grounds, the only remedy is to file a writ petition under Article 227 of the Constitution of India.    

M/s. Suvidha Realtors and Constructions Pvt Ltd vs The Hubli Taluka Agricultural Produce Co-Operative Marketing Ltd and another.

Civil Revision Petition 100019 of 2020 decided on 6 March 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/371232/1/CRP100019-20-06-03-2021.pdf
Relevant paragraphs: In this petition filed under Section 115  of  the  Code  of  Civil Procedure, 1908 the petitioner is calling in question the legality and validity of the order dated 31.01.2020 passed in O.S.No.51/2009 by  the  learned Principal Senior Civil Judge, Hubballi, returning the plaint of the plaintiff.

3. The office has raised objections regarding the maintainability of the revision petition under  Section  115  of CPC as against the impugned  order  dated  31.01.2020  passed by the learned court below. Respondents who are  the  defendants before the Court below have  also  taken  up  the  same contentions.

7. As is apparent from the above, the learned Court below has passed the impugned order returning the plaint to the plaintiff for want of compliance of statutory/mandatory notice under Section 125 of the Karnataka Co-operative Societies Act, 1959. 

9. Sub-Section (1) of Section 115 of CPC is very clear that a revision is maintainable  only  when  no  appeal  lies against the impugned order.
10. The appeal against judgment and decree passed in original suits and orders passed in such  suits  can  be  maintained under Section 96 read with Order 41 of CPC  or under Order 43 of CPC.  
11. There is absolutely no quarrel about the fact on  either side that since the impugned order is one  of  returning  the plaint for alleged want of statutory notice, to  defendant  No.1, no decree has resulted therefrom and accordingly no  appeal can be maintained as against the impugned order under Section 96 of CPC.
12. The next question which arises is as to whether an appeal can be maintained under Order 43 of CPC. 
13. A bare perusal of the above provision shows that the impugned order is not one of returning the plaint to be presented to a proper Court and therefore, no appeal can be maintained against the impugned order under Order 43 of the Code.
14. The only point of controversy  between  the  parties on either side is, while the petitioner asserts that the impugned order comes within the proviso to sub-Section (1) of Section 115 of CPC, and the revision petition is maintainable, the assertion of the respondents is that it is not so and revision petition, therefore, is not maintainable against the impugned order. 
15. A careful perusal of the proviso to sub-Section (1) of Section 115 of CPC makes it obvious that a revision petition can be maintained before the High Court and in such a revision petition, High Court can vary or reverse the order impugned before it only if the order under revision, if it had been made in favour of the revision petitioner would have finally disposed of the suit or other proceedings.  In  other  words, the condition precedent for the maintainability of a revision petition under CPC is that if the  order  which  is called in question in the  revision  petition  had been otherwise, that is if the order were to be in favour of the revision petitioner, it ought to have had the effect of disposing of the entire suit.  In this particular case, the learned Court below has held that the petitioner has failed to issue statutory notice under Section 125 of the Karnataka Co-operative Societies Act, 1959. In order for the High Court to entertain a revision petition,  the  situation  should  have  been  that  if  the  Court  had  accepted  the  contention  of  the  petitioner  herein  and held the notice issued to defendant No.2 itself was sufficient,  the  effect  of  such  order  should  have  been to finally  dispose  of  the  suit. Such a finding  by  the  learned trial Court would not have had the effect of finally disposing
of O.S.No.51/2009 in this particular case. It is therefore quite clear that the impugned order is not revisable under Section 115 of CPC and as such, the present petition is not maintainable. 
16. Hence, the following : The above petition is rejected as not maintainable. However, interim order which is in operation till today, shall continue for a period of fifteen days from today, in order to enable the petitioner herein to take such steps as is advised,  to question the impugned order.

Cases referred 

1.W.P.No.113059/2014 – Dalawai Nagappa since deceased by LRs. And ors. Vs. P.  Abdul Bari and others.
2.(1977) 4 SCC 551 – Madhu Limaye vs. The State of Maharashtra.
3.(2003) 6 SCC 675 – Surya Dev Rai vs. Ram Chander Rai and others.
4.ILR 2018 Kar. 3785 – Nazir Ahamad and ors. Vs.  Anwarpashya  Sayyadmeera  Mujwar and ors.
5.ILR 2004 Kar. 1445 – The Arogyanagar Co- operative Housing Society Ltd. And others vs. Fakiragouda and others.
6.AIR 1977 SC 148 – State of Maharashtra and others vs. Chander Kant.
7.ILR 2018 Kar. 3785 – Nazir Ahamad and others vs. Anwarpashya Sayyadmeera Mujwar and others.
8.2001 (1) Kar.L.J. 36 – State and others vs. Prabhakar.
9.AIR 1963 SC 424 – Amar Nath Dogra vs. Union of India.
10.AIR 1991 Delhi 298 – The New India Assurance Co. Ltd. And ors. Vs. The Delhi Development Authority and ors.
11.AIR 1984 SC 1043 –  Bihari  Chowdhary  and ors. Vs. State of Bihar and ors.
12.AIR 1965 SC 11 – State of Andhra Pradesh vs. Gundugola Venkata Suryanarayana Garu.
13.AIR 1969 SC 1256 –  Beohar  Rajendra Sinha and ors. Vs. State  of  Madhya Pradesh and ors.
14.AIR 1969 SC 674 – Raghunath Das vs. Union of India and ors.