Decided on August 08,2012

Shri Satya Sanatan Trust Sadanand Ashram Appellant
Gopal Brahamchari Disciple Swami Jyotirmayanad Respondents


V.K. Bist, J. - (1.) PLAINTIFF /petitioner instituted Suit No. 3 of 2011 for injunction against the respondent in the Court of Civil Judge (Senior Division), Haridwar. Defendant/respondent filed his written statement alongwith a counter claim on 14.02.2011. The plaintiff/petitioner moved an application under Order 7 Rule 11 C.P.C. for rejecting the counter claim on the ground that same is barred by Section 92 of C.P.C. Grounds taken by the plaintiff/petitioner were that in the counter claim, particularly in paragraph No. 9, the defendant has challenged formation of the Shri Satya Sanatan Trust Sadanand Ashram (plaintiff) and has sought a relief on the ground that trust is improper. The application moved by the petitioner under Order 7 Rule 11 of C.P.C. for rejecting the counter claim was filed on the ground that counter claim is barred by Section 92 of C.P.C. The said application was numbered as Paper No. 57 Ka. The defendant/respondent filed objection against the said application. The trial Court vide order dated 12.01.2012, rejected the application moved by the plaintiff/petitioner under Order 7 Rule 11 C.P.C. Against the said rejection order present petition has been filed. Before the case could be argued on merit, the learned counsel for the respondent, Shri Siddhartha Singh raised objection about the maintainability of the petition under Article 227 of the Constitution of India and submitted that against the order impugned, revision alone is maintainable and that too before the District Judge, as counter claim in injunction sought by the defendant/respondent has been valued to the tune of Rs. 5,00,000/ - (Rupees Five Lakhs), and as per Uttarakhand amendment, Court of District Judge has got pecuniary jurisdiction upto Rs. 5,00,000/ -. He further submitted that by order dated 12.01.2012, the trial Court has rejected the application filed by the plaintiff/petitioner for rejection of counter claim under Order 7 Rule 11 C.P.C., which amounts to a case decided and hence, the order impugned is amenable to revision under Section 115 of C.P.C. He also submitted that in case an application under Order 7 Rule 11 C.P.C. is allowed and plaint is rejected, then a decree is drawn as per Section 2(2) of C.P.C. and the order rejecting the plaint, is appealable under Section 96 of C.P.C., but when an application is rejected, then no appeal lies, but only revision under Section 115 C.P.C. lies, as the scope of revision has been enlarged by the State Amendment by adding the proviso to the section. In support of his submission, Shri Siddhartha Singh relied upon the judgment reported in, 2002 (1) ARC 401 - Krishi Utpadan Mandi Samiti Vs. M/s. Heinz India Ltd. whereby the revision filed against the order rejecting application filed under Order VII Rule 11 was dismissed.
(2.) SHRI Arvind Vashistha, learned counsel for the petitioner submitted that impugned order dated 12.01.2012 is illegal as learned trial court totally ignored the provisions of section 92 of C.P.C. and has failed to consider that no suit with a relief based upon a cause of action of improper constitution and improper functioning of a pubic Charitable Trust can be instituted without permission of District Judge under section 92 of C.P.C. On maintainability of the petitioner, the learned counsel for the petitioner submitted that application filed by the plaintiff under Order VII, Rule 11, C.P.C. was not allowed but was rejected. Even if the application is allowed, the suit will continue and only counter claim would be dismissed. By referring Order VIII Rule 6A of C.P.C. he submitted that counter claim also has same effect as a cross -suit as to enable the Court to pronounce a final judgment in the same suit, both or original claim and on the counter -claim. He also referred Order VII Rule 13 of C.P.C. and submitted that in the event of rejection of plaint, fresh suit can be instituted. Learned counsel for the petitioner contended that order impugned is not a final order as same is not deciding the issue finally and it is not a case decided. Hence, petition under Article 227 of the Constitution of India is maintainable. In support of his submission, he relied upon the judgment of this Court in Civil Revision No. 88 of 2002, Rajesh Kumar Gautam vs. Maha Mandaleshwar Vedabayasanad Geeta Ashram in which it was held that order made in the course of suit or proceedings would be revisable only if it determines or adjudicates the same right or obligations of the parties in controversy. He also submitted that even if it is held that against the impugned order, only revision is maintainable, in that event such revision will lie before this Court and not before the Court of District Judge as valuation mentioned in the suit regarding the same property is above 5 lacs. He prayed that in that event liberty be given to him to convert his pleading into a revision. I have considered the submission of learned counsel for the parties. Order VIII Rule 6A deals with the counter claim. Order VIII Rule 6A(4) provides that the counter claim shall be treated as a plaint and governed by the rules applicable to plaints. Application moved by the petitioner for rejection of counter claim has been rejected by the trial court. Had the application of plaintiff/petitioner under Order VII Rule 11 been allowed, the counter claim of the defendant/respondent would have been dismissed. In both the situation, the order passed would amount to case decided. The submission of the learned counsel for the petitioner that valuation of plaint has to be seen for the purpose of filing revision is not acceptable to this Court because the order, which is being challenged, is the order passed in the counter claim and not in the suit. Valuation is a subject matter of issue and cannot be decided at this stage. For preferring a revision, valuation of counter claim is to be seen. Case law cited by the learned counsel for the petitioner does not help the petitioner as that judgment is prior to 2006 amendment.
(3.) IN view of above discussion, the petition under Article 227 of the Constitution of India is dismissed as non -maintainable. If the petitioner so likes, he may file revision before the District Judge concerned. The District Judge shall consider the delay condonation application of the petitioner keeping the pendency of the petition in mind. No order as to cost.;

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