Case Note & Summary
The petitioner, Jasraj Lalaji Oswal, was the defendant in Civil Suit No. 9 of 2016 filed by the respondents (plaintiffs) seeking his eviction. In that suit, the petitioner filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint on the ground that it disclosed no cause of action. The trial court dismissed that application on 16th September 2017. Aggrieved, the petitioner filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court. At the hearing, the respondents raised a preliminary objection that the writ petition was not maintainable because the proper remedy was a revision under Section 115 CPC. The petitioner argued that the application was a composite one, also involving other issues, and that the trial court had framed three issues, making it a mixed adjudication; therefore, the remedy under Section 115 was not available and only Article 227 could be invoked. The court also sought assistance from an amicus curiae, Shri Kaustubh Dubey, who pointed out that in matters from the Small Cause Court, revision lies to the Division Bench of the Small Cause Court, citing Bhartiben Shah v. Smt. Gracy Thomas. The High Court examined the nature of the order and held that the availability of a revision under Section 115 CPC is determined by the nature of the order, not the label of the application. Since the order rejected an application under Order 7 Rule 11, a revision under Section 115 was clearly available. The composite nature of the application did not alter this position. Consequently, the writ petition under Article 227 was not maintainable. The court dismissed the writ petition, leaving it open to the petitioner to pursue the appropriate remedy of revision under Section 115 CPC before the Division Bench of the Small Cause Court.
Headnote
A) Civil Procedure - Maintainability of Writ Petition - Article 227 vs Section 115 CPC - Availability of Revision - Where an order rejecting an application under Order 7 Rule 11 CPC is passed, the remedy of revision under Section 115 CPC is available and must be availed; a writ petition under Article 227 is not maintainable merely because the application also sought other reliefs or involved mixed adjudication. (Paras 4-7, 10-12) B) Civil Procedure - Composite Application - Order 7 Rule 11 CPC - Partial Rejection - An application seeking partial rejection of plaint under Order 7 Rule 11 CPC, even if combined with other issues, does not convert the order into one not subject to revision under Section 115 CPC; the availability of revision is determined by the nature of the order, not the label of the application. (Paras 6-7, 10-12) C) Civil Procedure - Revision - Small Cause Court - Division Bench - In matters arising from Small Cause Court, revision under Section 115 CPC lies to the Division Bench of the Small Cause Court, not to the High Court under Article 227. (Para 8)
Issue of Consideration
Whether a writ petition under Article 227 of the Constitution of India is maintainable against an order rejecting an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, when a revision under Section 115 of the CPC is available, and whether the composite nature of the application alters the remedy.
Final Decision
The writ petition is dismissed as not maintainable. The petitioner is at liberty to pursue the appropriate remedy of revision under Section 115 CPC before the Division Bench of the Small Cause Court.
Law Points
- Maintainability of writ petition under Article 227 when revision under Section 115 CPC is available
- Composite application under Order 7 Rule 11 CPC and other issues
- Partial rejection of plaint
- Jurisdiction of Small Cause Court revision
