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Judgment
Dr.Ashokkumar C. Joshi, J
Heard learned advocate Mr. Jay S Shah for the petitioner through video conference.
Learned advocate Mr. Shah has placed reliance upon the order passed by Division Bench of this Court in First Appeal No. 1629 of 2016 with Civil
Application No. 7235 of 2016 in First Appeal No. 1629 of 2016 dated 11.08.2016 which reads thus:
“[1.0] Feeling aggrieved and dissatisfied with the impugned order dated16.07.2016 passed by the learned Senior Civil Judge,
Mehsana(hereinafter referred to as “learned Judgeâ€) by which the learned Judge has refused to register the suit filed by the appellants
herein â€" original plaintiffs and hence, rejected the suit (without even before it is registered), the original plaintiffs have preferred the
present First Appeal.
[2.0] Shri M.B. Gandhi, learned advocate appearing on behalf of the appellants has strenuously submitted that as such under the Code of
Civil Procedure, 1908 (hereinafter referred to as “CPCâ€), there is no provision not to register the suit on any ground. It is submitted
that plaint can be rejected either under Order VII Rule 10, Order VII Rule 11 or under any other provision of the CPC, however the same
can be only after the suit is registered. It is submitted that therefore, the impugned order is wholly without jurisdiction.
[3.0] However, it is required to be noted that not registering the suit cannot be said to be a decree within the meaning of Section 2(2) of the
CPC. Therefore, the present First Appeal against the impugned order under Section 96 of the CPC shall not be maintainable, however it will
be open for the appellants herein â€" original plaintiffs to have recourse to law may be under Article 227 of the Constitution of India
challenging the impugned order and as and when such proceedings are initiated, the same be considered in accordance with law and on
merits as we have not expressed anything on merits with respect to the impugned order. Consequently, Civil Application No.7235/2016
stands disposed of.â€
Learned advocate Mr. Shah has also placed reliance upon the order passed by this Court in SCA No. 14896 of 2016 dated 22.02.2017
and 27.03.2017 which reads thus:
The Registrar of Principal Senior Civil Court, Mehsana is hereby directed to submit a report to this Court with regard to the plaint of
Special Civil Suit submitted by the petitioners on 5.7.2016 before the said Court. He shall explain that whether the suit was registered or
not. It appears from the certified copy of the plaint produced before this Court that number was given to the suit which was thereafter
erased by white ink. Similarly, on the last page of the plaint also i.e. internal page No.11 of the plaint, again white ink is applied by erasing
the number of the suit. He shall also explain that if earlier number was given to the suit, why it was deleted. The learned Principal Senior
Civil Judge, Mehsana who has passed the order dated 16.7.2016 below plaint Exh.1, which is impugned in the present petition, is also
directed to submit a report as to when the plaint was placed before him, the suit was registered or not and number was given or not. He
shall also explain in his report as to whether the procedures under the Civil Manual were followed by him or by his subordinates. Both the
reports should reach to this Court on or before 25.3.2017. Since the original plaint which was submitted by the petitioners was returned to
them pursuant to the impugned order, the office is directed to send a copy of the plaint along with order passed below Exh.1 (page Nos.1 to
15 of the petition) in a sealed cover to the concerned Principal Senior Civil Judge, Mehsana with a direction that he shall return the same
along with his report as well as report of the Registrar. Stand over to 27.3.2017. Ad-interim relief granted earlier to continue till then.
SCA NO. 14896 of 2016 dated 27.03.2017 which reads as under:
“1. Rule. Mr. Amit C. Nanavati, learned advocate appearing for the respondent No.1 and Mr. S.M. Gohil, learned advocate appearing
for the respondent No.2 waives service of rule on behalf of respective respondents.
In pursuance of the order dated 22.2.2017, reports dated 20.3.2017 and 14.3.2017 are received from Principal Senior Civil Judge,
Mahesana as well as Registrar, Principal Senior Civil Court, Mehsana. I have gone through both the reports.
I have also gone through the impugned order dated 16.7.2016 passed by learned Principal Senior Civil Judge, Mehsana. Prima facie, it
appears that while passing the impugned order, the procedure prescribed under the Code of Civil Procedure, 1908 and under the
provisions of Civil Manual are not properly followed. Hence, I am of the opinion that the present petition requires consideration. Hence,
the petition is allowed. The impugned order dated 16.7.2016 passed by learned Principal Senior Civil Judge, Mehsana below application
Exh.1 is hereby set aside. The learned Trial Court shall deal with the plaint in question afresh. Rule is made absolute to the above extent.
Registry is directed to forward the original plaint annexed along with the reports submitted today to the learned Principal Senior Civil
Judge, Mehsana in a sealed cover.
It would be open for the respondents â€" original defendants to raise all objections available under the provisions of Code of Civil
Procedure, 1908.
Ad-interim relief granted by the coordinate Bench of this Court vide order dated 19.9.2016 shall remain in existence for a period of four
weeks from today.
I have not gone into the merits of the case at all and the learned Trial Court shall decide the case on its own merits without being
influenced by this order or its earlier order.
It is hereby made clear that right to file execution petition by the judgment creditor is not prohibited. If within a period of four weeks
from today, such an application is filed, the Executing Court shall not pass any order thereon for a period of four weeks from the date of
receipt of this order. Direct service is permitted.â€
Learned advocate Mr. Shah at the time of admission has argued that as per the judgment of this Court, while rejecting the plaint and to make it
appealable, the same should be registered first and thereafter the remedies under Article 227 of the Constitution of India is available to the petitioner.
He has further submitted that in SCA No. 14896 of 2016, wherein identical issue was there, and it was opined that a plaint is required to be registered
first and thereafter on merits verdict may be passed under Order 7 Rule 11 of the CPC.
Therefore, this Court is of the opinion that the matter requires consideration, issue NOTICE returnable on 24. 02.2021.
Registry to call for the report from the Registrar, Principal S.D Court through Principal Sernior Civil Judge, Vijapur, Mehsana so as to reach this
Court, on or before 24.02.2021.