HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU RSA No. 4/2025 CM No. 1598/2025 CAV No 316/2025 Reserved on:- 30.08.2025. Pronounced on:- 11.09.2025 Raghubir Singh …..Appellants Through: Mr. Rudhar Partap Singh, Advocate Vs Sat Pal and anr.. .…. Respondents Through: None. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The appellant has filed the present 2nd appeal against order dated 04.02.2025 passed by learned Principal District Judge, Jammu, whereby 1st appeal filed by the appellant against order dated 22.08.2024 passed by learned Munsiff (Additional Special Mobile Magistrate), R.S Pura has been dismissed. 2. It appears that the respondents have filed a suit against the appellant and 07 other defendants before the Court of learned Munsiff, (Additional Special Mobile Magistrate), R.S Pura (hereinafter referred to as “the trial Court”) seeking a declaration that the respondents/plaintiffs are in peaceful possession of land measuring 01 kanal falling in khasra No. 399 situated at village Biaspur Tehsil Suchetgarh District Jammu with permanent prohibitory injunction restraining the defendant including the Sr. No. 94 2 RSA No. 4/2025 appellant herein from forcibly interfering in peaceful possession of the plaintiffs in the said land. 3. It seems that the appellant/defendant filed an application under Order 7 Rule 11 CPC before the trial Court seeking rejection of the plaint. The said application came to be dismissed by the learned trial Court in terms of order dated 22.08.2024. Against the said order, the appellant/defendant filed an appeal before the Court of learned District Judge, Jammu (hereinafter referred to as “1st appellate Court”). A preliminary objection with regard to maintainability of the appeal was raised by the respondents/plaintiffs before the 1st appellate Court by contending that an order dismissing an application under Order 7 Rule 11 CPC is not appealable in nature. 4. The learned 1st Appellate Court after placing reliance upon judgments of the Supreme Court in the cases of Liverpool & London S.P & I Association Ltd. Vs. M.V Sea Success I and anr.; (2004) 9 SCC 512 and Shah Babulal Khimji Vs. Jayaben D. Kania and anr.; 1981 (4) SCC 8 came to the conclusion that an order dismissing an application under Order 7 Rule 11 CPC falls in the category of “preliminary judgment” as such, the same is appealable in nature. However, after holding the appeal maintainable, the learned 1st appellate Court dismissed the appeal of the appellant/defendant on merits. 3 RSA No. 4/2025 5. The appellant/defendant has now assailed the order of the trial Court as upheld by the 1st appellate Court by way of the present appeal. 6. At the outset, learned counsel for appellant was requested to satisfy this Court about maintainability of the present 2nd appeal. 7. I have heard learned counsel for the appellant and perused record of the case. 8. The present proceedings have been filed by the appellant/defendant by way of 2nd appeal. Section 100 of CPC deals with the 2nd Appeal. It reads as under:- “(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the 4 RSA No. 4/2025 hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]” 9. From a perusal of sub-section (1) quoted above, it comes to fore that an appeal would lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law, meaning thereby that a 2nd appeal is only provided against a decree passed in appeal by any Court subordinate to the High Court. The question that falls for determination is as to whether an order refusing to reject the plaint under Order 7 Rule 11 CPC falls within the definition of decree as contained in Section 2(2) of CPC. 10. In order to find an answer to the aforesaid question, it would be apt to understand the meaning of the word “decree” which is defined in Section 2 (2) of the CPC. The same reads as under:- “(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the 5 RSA No. 4/2025 determination of any question within section 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.” 11. From a perusal of the aforesaid provision, it becomes clear that a decree is the formal expression of an adjudication expressed by a Court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The decree may be preliminary or it may be a final decree.. It is also provided that a decree would include rejection of plaint as also determination of any question within Section 144 of CPC but it does not any adjudication from which an appeal lies as an appeal from an order or an order of dismissal for default. 12. Before deliberating upon the issue as to what type of orders would come within the definition of “decree”, it would be necessary to have a careful analysis of legal position expounded by the Supreme Court in Shah Babulal Khimji’s case (supra) and Liverpool & London S.P & I’s Association Ltd.’s case (supra) which have been relied upon by the learned 1st appellate Court while holding that order rejecting an application under Order 7 Rule 11 CPC is appealable in nature. 13. In Shah Babulal Khimji’s case (supra), the Supreme Court was seized of an issue as regards the scope, ambit and meaning of the word ‘judgment’ appearing in Clause 15 of the Letters Patent of the Bombay High Court. The question that came up for consideration before the Supreme Court was as to whether 6 RSA No. 4/2025 an order refusing an application for appointment of Receiver made by Single Judge of the Bombay High Court is appealable before the Division Bench of the said Court. The Supreme Court after analyzing the provisions contained in Section 96 to 104 of the CPC came to a conclusion that Section 104 of the CPC applies to internal appeals in the High Court as well. The Supreme Court also deliberated upon the point as to whether the orders which are not included in Clauses (a) to (w) of Order 43 Rule 1 of the CPC would still be appealable to the Division Bench and if so, in what circumstances. While answering the said question, the Supreme Court expounded purport of the word ‘judgment’ used in Clause 15 of the Letters Patent of the Bombay High Court. In this context, the Supreme Court after noticing the definition of ‘judgment’ as contained in Section 2 (9) and definition of decree as contained in Section 2(2) of the Code of Civil Procedure, discussed the types of judgments, whereafter the Court laid down the guidelines for determining as to which type of judgments would be appealable before the Division Bench in terms of Clause 15 of the Letters Patent of Bombay High Court. The observations of the Supreme Court which are relevant to the context are reproduced as under:- “113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively 7 RSA No. 4/2025 determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-s. (2) of s. 2 cannot be physically imported into the definition of the word 'judgment' as used in cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the terms 'order' or 'decree' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds :. (1) A Final Judgment-A judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench (2) A preliminary judgment-This kind of a judgment may take two forms-(a) where the Trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or 8 RSA No. 4/2025 the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the Trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res Judicata, a manifest defect in the suit, absence of notice under section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an R order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to larger Bench. (3) Intermediary or Interlocutory judgment-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by o. 43 R.1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an 9 RSA No. 4/2025 order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the Trial Judge in a suit under order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an Order passed by the Trial Judge would not amount to a judgment within the meaning of cl. 15 of the Letters Patent but will be purely an interlocutory order. Similarly, suppose the Trial Judge passes an Order setting aside an exparte decree against the defendant, which is not appealable under any of the clauses of O. 43 R.1 though an order rejecting an application to set aside the decree passed exparte falls within O. 43 R.l cl. (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex-parte decree puts the defendant to a great advantage and works serious injustice to 10 RSA No. 4/2025 the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench. 114. In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge. 115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the 11 RSA No. 4/2025 appellate court in appeal against the final judgment. 116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar's case (supra), as discussed above. 117. Let us take another instance of a similar order which may not amount to a judgment. Suppose the Trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant wh o would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the Trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of cl. 15 of the Letters Patent. 12 RSA No. 4/2025 118. The various instances given by us would constitute sufficient guidelines to determine whether or not an order passed by the Trial Judge is a judgment within the meaning of the Letters Patent. We must however hasten to add that instances given by us are illustrative and not exhaustive. We have already referred to the various tests laid down by the Calcutta, Rangoon and Madras High Courts. So far as the Rangoon High Court is concerned we have already pointed out that the strict test that an order passed by the Trial Judge would be a judgment only if it amounts to a decree under the Code of Civil Procedure, is legally erroneous and opposed to the very tenor and spirit of the language of the Letters Patent. We, therefore, do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer, it is manifest that no question of any finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J. in Tuljaram Row's case (supra) (which seems to have been followed by most of the High Courts) minus the broader and the wider attributes adumbrated by Sir White, C.J. Or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above. 119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court: (1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine 13 RSA No. 4/2025 orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. (2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings. (3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind. 120. Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the Trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments: (1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant (2) An order rejecting the plaint. 14 RSA No. 4/2025 (3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure. (4) An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent. (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under s. 80, bar against competency of the suit against the defendant even though the suit is kept alive. (6) An order rejecting an application for a judgment on admission under order 12 Rule 6. (7) An order refusing to add necessary parties in a suit under s. 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue in forma pauperis. (10) An order granting review. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. (12) An order holding that the defendants are not agriculturists within the meaning of the special law. (13) An order staying or refusing to stay a suit under s. 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of the decree. (15) An order deciding payment of court fees against the plaintiff. 121. Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and 15 RSA No. 4/2025 not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard. 122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term 'judgment' would have now been settled and a few cases which may have been left out, would undoubtedly be decided by the court concerned in the light of the tests. Observations and principles enunciated by us.” 13. Relying upon the ratio laid down in Shah Babulal Khimji’s case (supra), the Supreme Court in the case of Liverpool & London S.P & I (supra) dealt with the issue as to whether order refusing to reject plaint would be appealable in the context of Clause 15 of the Letters Patent of Bombay High Court in the following manner:-:- “120. The submission, however, to the effect that in the suit all defences would be open to the defendant, in our opinion, is misconceived inasmuch as, no evidence can be adduced in absence of any pleading. There may not, furthermore be any requirement to go into the trial if the plaint does not disclose a cause of action. 16 RSA No. 4/2025 121. The contention that an order refusing to reject a plaint is one akin to order amending the plaint would not be a correct proposition of law. 122. The question as to whether the defendant despite such an order refusing to reject a plaint will have a right to show that the case is false would again be of no consequence. The said submission, in our opinion, is based on a wrong premise. 123. An order refusing to grant leave to a defendant to defend the suit would be passed when it is found that the defence is a moonshine. 124. Clause 15 of the Letters Patent is not a special statute. Only in a case where there exists an express prohibition in the matter of maintainability of an intra court appeal, the same may not be held to be maintainable. But in the event there does not exist any such prohibition and if the Order will otherwise be a 'judgment' within the meaning of Clause 15 of the Letters Patent, an appeal shall be maintainable. 125. What would be a judgment is stated in Shah Babulal Khimji (supra) as under: (SCC p. 45, paras 80-81) “80. …"We think that "judgment" in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. 81. An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or not an order passed by the Trial Judge would be a judgment : (1) a decision which affects the merits of the question between the parties; (2) by determining some right or liability; (3) the order determining the right or liability may be final, preliminary or interlocutory, but the determination must be final or one which decides even a part of the controversy finally leaving other matters to be decided later. 17 RSA No. 4/2025 126. In Lea Badin Vs. Upendra Mohan Roy [AIR 1935 Cal. 35], the Calcutta High Court held that an order refusing to appoint a receiver is determinative of a right of the plaintiff and would accordingly be a judgment. 127. Yet again in Chittaranjan Mondal Vs. Sankar Prosad Sahani [AIR 1972 Cal. 469] the Calcutta High Court held that an order refusing to grant an injunction restraining execution of the judgment- debtor was a judgment within the meaning of Clause 15. 128. As by reason of an order passed under Order 7, Rule 11 of the Code of Civil Procedure, the rights conferred upon the parties are determined one way or the other, stricto sensu it would not be an interlocutory order but having regard to its traits and trappings would be a preliminary judgment. 129. It is true that in Shah Babulal Khimji (supra) it is stated that an order rejecting the plaint would be appealable but does not expressly state that an order refusing to reject would not be appealable. Therein this Court gave 15 instances where an order would be appealable which are only illustrative in nature. 130. Such observations have to be understood having regard to the concept of finality which are of three types: (1) a final judgment (2) a preliminary judgment and (3) intermediary or interlocutory judgment. 131. In our opinion the order refusing to reject the plaint falls in the category of a preliminary judgment and is covered by the second category carved out by this Court.” 14. In the light of the aforesaid legal position, let us now advert to the facts of the present case. In the instant case, we are dealing with a situation where the order dismissing the application for rejection of plaint has been passed by the learned Munsiff. Such an order would be appealable only if it falls in any of the Clauses of Order 43 Rule 1 CPC or if it qualifies to be a 18 RSA No. 4/2025 “decree” within the meaning of Section 2 (2) of CPC. Clause 12 of Letters Patent of J&K High Court which provides for an appeal from judgment of a Single Judge before the Division Bench, has no applicability to the present case as we are not dealing with a situation relating to maintainability of an appeal against the order passed by Single Judge of this Court in exercise of ordinary original civil jurisdiction. The focus of attention in this case, therefore, has to be interpretation of word “decree” as defined under Section 2 (2) of CPC and not the interpretation of word “judgment” as contained in Clause 12 of Letters Patent of J&K High Court. 15. In Shah Babulal Khimji’s case (supra), it has been clearly held by the Supreme Court that the word ‘judgment’ used in Letters Patent should receive a much wider and more liberal interpretation than the word ‘judgment’ used in the Code of Civil Procedure. Therefore, an order passed by Single Judge may qualify to be a judgment for the purpose of Clause 12 of Letters Patent of J&K High Court to make it appealable before the Division Bench but an identical order passed by a civil Court would not become appealable before the District Judge or before the High Court unless it qualifies to be a “decree” or it falls in any of the Clauses of Order 43 Rule 1 of CPC. 16. An order dismissing an application for rejection of plaint does not fall in any of the clauses of Order 43 Rule 1 CPC or Section 104 of the CPC, therefore, the same is not an order of 19 RSA No. 4/2025 appealable nature. The question that is required to be determined is as to whether such an order would qualify to be a decree. 17. The learned 1st Appellate Court while relying upon the judgment in Liverpool & London S.P & I’s case (supra) has held that an order dismissing an application under Order 7 Rule 11 CPC is a preliminary judgment and as such, appealable in nature. I am afraid the view taken by the learned 1st Appellate Court in this regard is not sustainable in law. In the context of present case, an order dismissing an application under Order 7 Rule 11 CPC may be a preliminary judgment for the purpose of Clause 12 of Letters Patent of J&K High Court but the same would not qualify to be a “decree” or an appealable order under any of the provisions of Code of Civil Procedure which govern the filing of appeal against orders and decrees passed by civil Courts. 18. As already stated, a decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It may be either preliminary or final. An order dismissing an application under Order 7 Rule 11 CPC, does not conclusively determine the rights of the parties relating to the matters in controversy in the suit. It may determine the contentions of the parties raised about the maintainability of the suit but the rights in the subject matter of the suit are not conclusively determined when an application under Order 7 Rule 11 CPC is dismissed. However, when such an application is allowed and the plaint is rejected, it determines the rights of the 20 RSA No. 4/2025 parties in the subject matter of the suit conclusively. Therefore, by way of clarification, the legislature has included such an order within the definition of a decree. A decree concludes the proceedings in a suit except in cases where a preliminary decree is required to be passed and further proceedings are to be taken before complete disposal of the suit. An order reusing to reject plaint does not finally bring an end to the suit nor does it qualify to be a preliminary decree. 19. The Supreme Court in Shah Babulal Khimji’s case (supra) has held that a decree is a narrower concept than a judgment. A judgment consists of reasons and grounds for a decree or order passed by a Court whereas, the decree is formal expression of adjudication which conclusively determines the rights of the parties with regard to subject matter of controversy in the suit. The Supreme Court has gone to hold that concept of judgment is narrow and the limitations engrafted in sub-section (2) of Section 2 cannot be imported into definition of word ‘judgment’ as used in Clause 15 of the Letters Patent of Bombay High Court. Therefore, while an order rejecting an application under Order 7 Rule 11 CPC may be a judgment within the meaning of Clause 12 of Letters Patent of J&K High Court, it does not fall within the definition of “decree” as contained in sub- section (2) of Section 2 of CPC. 20. The learned 1st Appellate Court has failed to draw the distinction between the position of law that would be applicable in 21 RSA No. 4/2025 a case where issue for determination would be whether or not an order is appealable under Clause 12 of the Letters Patent of J&K High Court from Single Judge to a Division Bench and the position of law that would be applicable in a case where such an order is sought to be assailed by way of an appeal before a District Judge. The ratio laid down by the Supreme Court in Shah Babulal Khimji’s case (supra) and Liverpool & London S.P & I’s case (supra) has been handed down in the context of interpretation of word ‘judgment’ as contained in Clause 15 the Letters Patent of the Bombay High Court and not in the context of the provisions contained in Section 96 to 104 of the Code of Civil Procedure. The said ratio is, therefore, not applicable to the facts of the present case. 21. For what has been discussed hereinbefore, it can safely be stated that an order dismissing an application under Order 7 Rule 11 CPC is not appealable in nature if it is passed by a civil Court. The situation may be different if such an order is passed by Single Judge of the High Court in exercise of its ordinary original civil jurisdiction. It is also clear that such an order does not qualify to be a “decree” within a meaning of definition of sub- section (2) of Section 2 of CPC nor does it fall in any of the clauses under Order 43 Rule 1 CPC. Thus, the order passed by the trial Court was not appealable in nature. The learned 1st Appellate Court has landed itself into a jurisdictional error in entertaining the appeal against the said order. The order 22 RSA No. 4/2025 impugned passed by the learned 1st Appellate Court is, therefore, without jurisdiction. 22. Having held that the order passed by trial Court does not qualify to be a decree, the second appeal under Section 100 of the CPC against the said order is not maintainable. Accordingly, the appeal is dismissed leaving it open to the appellant to challenge the order passed by the trial Court by way of an appropriate proceeding. 23. Disposed of. (SANJAY DHAR) JUDGE JAMMU 11.09.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? Yes Mahavir Singh 2025.09.11 17:13 I attest to the accuracy and integrity of this document