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Civil Revision No. 580 of 1982, decided on 17th December, 1984.

(a) Civil Procedure Code (V of 1908)--

---O.VII, r. 11 & O.XLI, r. 1--Rejection of plaint--Appeal against- Non-filing of decree sheet--Effect--Appeal filed against order rejecting plaint under 0.V11, r. 11 without tiling copy of decree sheet with memorandum of appeal--Appeal, held, could not be thrown out for non -compliance of requirement of O.XLI, r. 1 of Civil Procedure Code, 1908.

(b) Civil Procedure Code (V of 1998).

-S. (l) and O. VII, r. 11 & O.XLI, r. 1--Order rejecting plaint--Nature of--Order rejecting plaint under O.VI1, r. 11 no doubt had been included in definition of decree under S. 2(2) of Civil Procedure Code, 1908, but was riot a adjudication conclusively determining rights of parties--Appeal filed against such order without filing copy of decree sheet with memorandum of appeal, held, was competent.

Feroz Shah v. Kalu Ram and another .A l R 1936 Pesh. 155 rel.

M. Saleem Sahgal for Petitioner.

Ghiasuddin Chughtai for Respondent.

Date of hearing; 3rd December, 1984.

This revision petition under section 115, C.P.C. arises out of judgment dated 27=6-1982 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's Appeal against order/decree dated 2-6-1979of the learned Civil Judge, Lahore rejecting his plaint under Order V11, rule 11, C.P.C.

2. The relevant facts of the case are that 61st. Mumtaz Begum was transferred half portion of 'choubara' (western side) of property bearing No. S. 31-R 146 situate on 8, Mcleod Road, Lahore and other half portion (southern side) of the same was transferred to one Zahid Hussain .' Zahid Hussain alienated his half portion in favour of Zahid Bashir, the petitioner herein. Prior to .the aforesaid alienation in favour of Zahid Bashir, Bashir Ahmad Khan his father, occupied the aforesaid 'choubara' giant under the transferees. Mst.Mumtaz Begum filed ejectment petitions against Bashir Ahmad Khan, first one nit 14-111-1971 and the second on 15-4-1972. She succeeded in obtaining order of ejectment against Bashir Ahmad Khan upto the Supreme Court .when Civil Petition for Special Leave to Appeal No: 394 of 1979 filed by the latter was dismissed on 5-12-1979. It is significant to mention that the plea raised by petitioner's father that ejectment could not be ordered before partition of 'Choubara', was repelled by this Court while disposing of S.A.O. No. 601 of 1977 holding the same to be of no force because identify of the two portions was clearly described in para. 2 (b) of the Agreement of Association wherein two transferees had already erected a wall in the hall-,room of the shop of the ground floor which divided the ground floor between them, and the same wall would also divide 'Choubara' in question.

On 12-5-1979 the petitioner instituted a suit for permanent injunction against Mst. Mumtaz Begum restraining her from taking possession of the disputed property unless the same was partitioned.

Alongwith the suit the petitioner filed application under Order XXXIX, rules 1 and 2, C.P.C. for temporary injunction. The application was resisted by Mst, Mumtaz Begum on the ground that the suit was mala fide and had beer, filed to defeat the execution proceedings. The learned Civil Judge while dismissing petitioner's application rejected the plaint under Order VII, rule 11, C.P.C. on the ground that it did not disclose any cause of action in favour of the petitioner. The petitioner assailed the aforesaid order in appeal which was dismissed on 2-1-1982 by the learned Additional District Judge, Lahore on the ground that the impugned decree sheet dated 2-6-1979 was not on the file and the appeal had become barred by time. The petitioner filed revision petition in this Court and pleaded that he had filed the requisite decree sheet with the memorandum of appeal. The learned Additional District Judge did not provide him opportunity of hearing to prove that he had filed the decree sheet. This Court vide order dated 27-1-1982 allowed the revision petition and remanded the case to the learned Additional District Judge; Lahore for holding inquiry if, the petitioner had filed decree sheet with the memorandum of appeal and decide the appeal afresh in the light of his findings and in accordance with law. The learned Additional District Judge vide the impugned order dismissed the appeal holding that decree sheet .had been prepared by the learned trial Court but 'copy whereof was not obtained by the petitioner nor the same was filed by him alongwith the memorandum of appeal. Hence this petition.

3. Learned counsel for the petitioner contended that the alternative plea taken up by the petitioner to the effect, that appeal filed against order passed under Order VII, rule 11, C.P.C. being .itself a decree under section 2(2) C.P.C., would be competent even if decree as required under Order XLI. rule 1, C,P.C. is not filed with the memorandum of appeal, was not considered by the learned Additional District Judge, Lahore. Reliance in this behalf was placed on Feroz Shah v. Kalu Ram and another A 1 R 1936 Pesh. 155 and Hasna Hena Akhtari Begum v. Dacca Improvement- Trust and others P L- D' X969 Dacca 82.

4. Learned counsel for the respondent, on the other hand, submitted that the petitioner has taken pleas which are mutually destructive. On the one hand he pleaded that he had filed copy of the decree sheet alongwith the memorandum of appeal before the lower appellate Court while on the other, it is contended that there was no need for filing decree sheet. It was also submitted that the suit had been filed to prolong possession of the disputed property .on a point which had already been resolved upto the highest Court of this country. It was next submitted that once decree sheet is prepared by the trial Court no appeal without filing a copy thereof, would be competent as envisaged under Order XLI, rule 1, C . P. C . It was lastly submitted that the learned lower Courts had jurisdiction to decide the dispute and even if their findings may be wrong on the point of fact or of law, a revision petition would not be competent unless affected their exercise of jurisdiction. He relied on Muhammad Bux v.. Muhammad Ali 1984 SCMR 504 in support of his submission.

5. I have considered the contentions raised by learned counsel for the parties and have also gone through the record. Admittedly the learned lower appellate Court did not advert to the alternative plea taken up by the petitioner as to whether the appeal filed by him against order rejecting his plaint under Order VII, rule 11, C.P.C. was competent without filing decree sheet. Since this point has been agitated by the, learned counsel for the petitioner, before this Court again I proceed to decide it forthwith. The definition of decree, relevant to the extent., as mentioned in subsection (2) of section 2 of the Civil Procedure Code reads:--

"(2) 'decree' means the formal expression of an adjudication which, so far as 'regards the Court expressing it, conclusively determines the ,rights of the. parties with regard to till or any of the matters in controversy in the suit and may, be either preliminary or final: It shall be deemed to include the rejection of a plaint " '

Obviously the decree prepared corresponding to order rejecting the plaint could have no adjudication, conclusively determining the rights of the parties, in respect of matters in controversy in the suit, nevertheless he order rejecting the plaint being itself equivalent to a decree eliminates the requirement of preparing a separate decree sheet and filing the same with the memorandum of appeal as envisaged under Order XL1, rule 1, C.P.C. The memo of costs, if prepared, cannot be a decree as contemplated by order XL1, rule 1, C.P.C.

In my view, if an appeal is filed against order rejecting the plaint without copy of decree sheet, the appeal cannot be thrown out for noncompliance of tire requirement of Order XLI, rule 1, C.P.C. The main reason in support of this view, is that an order rejecting the plaint,

no doubt, has been included in the definition of a decree but it is not an adjudication conclusively determining the rights of the parties. The view finds support from a similar view taken to Feroz Shah v . Kalu Ram and another A I R 1936 Pesh. 155 wherein it was held that an order rejecting a plaint being itself equivalent to a decree eliminates the necessity of preparing a separate decree sheet and the appeal filed from such order without a decree sheet would be competent. On the other hand, Muhammad Bux's case cited by learned counsel for the respondent is not helpful to the respondent inasmuch as that the learned lower appellate Court in the impugned decision acted in exercise of its jurisdiction illegally and with material irregularity.

6. For the foregoing reasons this petition is accepted, the impugned judgment passed by the learned Additional District Judge, Lahore is set aside and the case is remanded to him for fresh decision after) hearing the parties within two months from the date of- this order.

7. The parties, are directed to appear before him on 22-12-1984.

8. There shall be no order as t0 costs.

H.B.T.

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