AGRAWAL, C. J. - (1.) THESE two revisions have been filed by Arun Kumar Saini against the judgment of the District Judge, Jaipur District, Jaipur.
(2.) FOR deciding these two revisions, detailed facts are not required. It would suffice to state that Arun Kumar Saini filed suit No. 91/87 against the defen-dant-Smt. Ram Dulari and others for declaration and permanent injunction with averments inter- alia that he wanted to apply for two mining leases of marble but the defendant No. 2 Govind Sahai, who was the close friend of the father of the plaintiff, asked that since there were number of applications for mining lease, it would not be possible to allot two mines in his name, therefore, he could make one application in his name and the other in the name of Smt. Ram Dulari, wife of Govind Sahai. Govind Sahai represented to the plaintiff that in case lease was granted in the name of his wife, the same would be transferred later on in favour of the plaintiff. Smt. Ram Diary undertook to execute a power of attorney in favour of the plaintiff conferring upon him all the rights necessary for mining operations. This power of attorney was for limited period till a formal lease was not executed by the Department. All the expenses were incurred by the plaintiff for two leases; one in his favour and the other in favour of Smt. Ram Diary. Plaintiff claimed that he was the owner of both of them. In the background of these facts, the plaintiff claimed declaration that the power of attorney executed by the defendant No. 1 in his favour was irrevocable and defendant No. 1 had no right to revoke the said power of attorney. The plaintiff also prayed that the dependants be restrained from interfering with his possession in the said marble mines. He claimed injunction restraining the defendants from transferring mine lease in any manner to other party. The defendants Nos. 1 and 2 did not file any written statement. They moved an application dated 31. 3. 1989 before the trial court under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. It was alleged by the defendants Nos. 1 and 2 that on coming into force of Benami Transactions (Prohibitions) Act, 1988, the present suit could not continue and since the said Act is retrospective, the plaint was liable to be rejected. The plaintiff filed a reply to the said application under Order 7 Rule 11 C. P. C. on 26. 5. 1989. He also submitted an application under Order 6 Rule 17 C. P. C. seeking leave of the Court for amendment of the plaint. The plaintiff wanted new paras to be inserted. The reply to the application was filed by the defendants Nos. 1 and 2. The learned District Judge took up the two applications together. In - the last paragraph of the order dated 3. 4. 1991, he remarked that it was not necessary in view of what he had said while disposing of application under Order 7 Rule 11 C. P. C. to pass any order on the application under Order 6 Rule 17 C. P. C. As a result, the plaint of the plaintiff stood rejected on 3. 4. 1991. The application under Order 6 Rule 17 C. P. C. was also dismissed. The plaintiff has filed two revisions; one S. B. C. Rev. No. 597/91 against the order rejecting the plaint and the other S. B. C. Rev. No. 598/91 against the order refusing to dispose of the application made under Order 6 Rule 17 C. P. C.
(3.) IN have heard learned counsel for the parties. Mr. Agrawal, learned counsel for the respondents raise a preliminary objection for the maintainability of the revision No. 597/91 which had been preferred against the rejection of the plaint under Order 7 Rule 11 C. P. C. He contended that the rejection of the plaint amounts to a decree under section 2 (2) of the Code of Civil Procedure. Hence, the order passed on the same was appealable under section 96 of the Code of Civil Procedure. He contended that the revision filed by the plaintiff against the order rejecting the plaint was incompetent and liable to be dismissed. Section 2 (2) of the Code of Civil Procedure defines 'decree' and lays down that it would include the rejection of a plaint. This amendment was brought about by the C. P. C. amendment in 1976. Before that, there was a difference of opinion amongst the various High Courts as to whether rejection amounted to a decree or not. It appears that in order to end the controversy, the Parliament made a provision clarifying the doubt. The preliminary objection taken by Mr. Agrawal has merit and the plaintiff ought to have filed an appeal instead of revision. Section 115 of the Code of Civil Procedure provides that a revision will lie only when no appeal lies thereto. The expression thereto in the context of the present facts would mean High Court. As an appeal lay, the revision was incompetent and the plaintiff should have challenged the order by means of an appeal. ;