- (1.)THOUGH this matter is listed for admission, with the consent of the parties, we have taken up the same for final disposal at the admission stage. We have heard Mr. Ravish Bhatt, learned Counsel appearing for the appellant and Ms." K. J. Brahmbhatt, learned Counsel appearing for the respondent.
(2.)THIS Letters Patent Appeal has been filed challenging the order of the learned Single Judge dated 25 -2 -2011 passed in Special Civil Application No. 13531 of 2009 filed by the appellant which has been dismissed on the ground that the petitioner has a remedy of filing a Second Appeal and writ petition was not maintainable.
(3.)BRIEF facts are that the appellant -plaintiff filed Regular Civil Suit No. 26 of 2008 before Principal Civil Judge, Borsad, for permanent injunction. The respondent -defendant filed an application in the suit under Order 7, Rule 11 of Civil Procedure Code for rejection of the plaint on the ground that the suit was not maintainable. The trial Court rejected the application for rejecting the plaint filed by the respondent under Order 7, Rule 11 of Civil Decided on 14 -3 -2012. Letters Patent Appeal No. 569 of 2011 in Special Civil Application No. 13531 of 2009 with Civil Appli. No. 4098 of 2011 in L.P.A. No. 569 of 2011. Procedure Code on 5 -1 -2009. The respondent filed Regular Civil Appeal No. 10 of 2009 before the learned District and Sessions Judge, Anand under Sec. 96 of Civil Procedure Code. The District Judge allowed the Appeal and set aside the order dated 5 -1 -2009 passed by the trial Court and rejected the plaint under Order 7, Rule 11 of Civil Procedure Code. The appellant challenged the order passed by the District Judge, Anand dated 31 -7 -2009 by filing Special Civil Application No. 13531 of 2009 on the ground that the order rejecting the application under Order 7, Rule 7 of Civil Procedure Code did not amount to a decree, therefore, the Appeal filed by the respondent before the District Judge, Anand was not maintainable under Sec. 96 of Civil Procedure Code.
Under Sec. 96 of Civil Procedure Code, only appeal lies against a decree and not against an order. Where an application under Order 7, Rule 11 of Civil Procedure Code, filed by the respondent itself is dismissed, it will be an order and it will not result in passing a decree by the trial Court as it does not result in deciding the right or liability of the parties to the suit. The trial Court, in dismissing the application of the respondent -defendant and rejecting their prayer for rejection of the plaint did not decide or determine any right or liabilities of he parties to the suit which could be said to have affected the merits of the dispute between the parties. The effect of rejection of the application under Order 7, Rule 11, Civil Procedure Code was that the suit remained pending before the trial Court. Therefore, no decree was passed by the trial Court on 5 -1 -2009 and it was merely an order rejecting the application of the respondent -defendant. Against the order passed by the trial Court, no appeal would lie under Sec. 96, Civil Procedure Code which only "provides appeal against a decree. Since the application of the respondent was rejected by an order, and no decree was passed by the trial Court, therefore:, Appeal under Sec. 96 of Civil Procedure Code filed by the respondent was not maintainable as appeal lies only against a decree and not against an order.