PRINCIPAL COMMISSIONER OF INCOME TAX 2 KOLKATA vs. ONE POINT COMMERCIAL PVT LTD

learned Trial Judge in Title Suit No. 157 of 2016. By the said order, the learned Judge was directed to take evidence in the case and decide, the case properly after taking evidence and the case was sent on remand to the learned Trial Judge for its proper adjudication. 5. Being aggrieved by the order dated July 01, 2025, the defendant nos. 2 to 5 have approached this Court by filing an application under Article 227 of the Constitution of India. 6. Mr. Aniruddha Chatterjee, learned senior advocate appearing for the opposite party no. 1 raised a preliminary objection as to the maintainability of the instant application under Article 227 of the Constitution of India. Mr. Chatterjee contended that the learned Judge of the first appellate Court allowed the Title Appeal and remanded the case to the learned Trial Judge for proper adjudication. 7. Mr. Chatterjee contended that the order dated July 01, 2025 passed by the learned District Judge is an order of remand passed under Order XLI Rule 23 of the CPC. He submitted that an appeal shall lie against the order dated July 01, 2025 as an appeal from order under Order XLIII Rule 1(u) of the CPC. In support of such contention, Mr. Chatterjee placed reliance upon the judgment of the Hon’ble Full Bench in the case of the Deputy Director, Employees’ State Insurance Corporation vs. Ward Memorial Church School and another reported at 2023 SCC OnLine Cal 2914.

such contention, Mr. Chakraborty placed reliance upon a decision of the Hon’ble Division Bench in the case of Shyam Sundar Paul vs. Goutam Poddar and others reported in AIR 2022 Cal 151. 11. Mr. Chakraborty, learned senior advocate sought to distinguish the decision of the Hon’ble Full Bench in the case of Deputy Director, Employees’ State Insurance Corporation (supra) by contending that only the answer on the point of reference is the ratio decidendi which is only binding upon this Court and other observations more particularly the observations made in paragraphs 47 and 103 of the said report are obiter dicta. 12. In support of his contention that it is only the ratio decidendi is binding and not the obiter dictum, Mr. Chakraborty placed reliance upon a decision of the Hon’ble Division Bench of the Bombay High Court in the case of Commissioner of Income-Tax vs. Thana Electricity Supply Ltd. reported in 1993 SCC OnLine Bom 591. 13. In reply Mr. Chatterjee, learned senior advocate contended that the observations made by the Hon’ble Full Bench in paragraphs 47 and 103 of the decision in the case of Deputy Director, Employees’ State Insurance Corporation (supra) cannot be said to be an obiter dictum, as such opinion was expressed on a question that arose for determination of the Hon’ble Full Bench and, therefore, the observations made in the said paragraphs are also binding upon this Court.

… 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 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.

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”

(iii) If the order is neither a 'decree', nor an appealable 'order' enumerated in Section 104 or Order 43 Rule 1, a revision would lie under Section 115 of the Code, if it satisfies the requirements of that section.

Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

2025 this Court finds that there has been no determination of the rights of the parties with regard to any of the matter in controversy in the suit. The preliminary issue of maintainability of the suit has also been directed to be decided at the time of hearing of the suit after taking evidence. 22. This Court therefore, holds that the order dated July 01, 2025 is not a “decree” as defined under Section 2(2) of the CPC. 23. This Court has to now decide whether the order dated July 01, 2025 passed by the learned Judge of the first appellate Court is an order appealable under Section 104 read with Order XLIII Rule 1(u) of the Code. 24. At this stage it would be beneficial to reproduce Order XLI Rule 23 of the Code, which reads thus: “23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

(i) The entire suit and not a portion of it should be disposed of by the Court from whose decree the appeal is preferred; (ii) disposal must be on a preliminary point; and (iii) reversal of the decree by the appellate Court. 26. As to what are the tests for determining whether a decision in a suit is on a preliminary point have been laid down by the Hon’ble Division Bench of the Calcutta High Court in the case of Nirmala vs Galop reported at AIR 1934 Calcutta 49. It was held therein that the meaning of the words “preliminary point” has been correctly laid down by the decision of a Full Bench of the Madras High Court in the Malayath Veetil Raman Nayar Vs. Krishna Nambudripad reported at AIR 1922 Madras 505, wherein it was pointed out the words “preliminary point” are not confined to such legal points only as will be applied as a bar in suit but comprehend all such points as may have prevented the Court from disposing of the case on the merits whether such points are pure questions of law or pure questions of fact. It was further pointed out that preliminary point must be one which must be independent of the merits. 27. This Court has to now decide whether the suit was disposed of by the learned trial Judge on a preliminary point. 28. It is evident from the order dated April 24, 2025 passed by the learned trial Judge in Title Suit No. 157 of 2016 that pursuant to an

order dated July 18, 2019 passed in C.O. 22 of 2019 a preliminary issue was framed whether the suit is maintainable in its present form and in law. Subsequent to passing the order in C.O. 22 of 2019, the application under Order VII Rule 11 of the Code was filed. The learned trial Judge decided the preliminary issue against the plaintiff and dismissed the suit by an order dated April 24, 2025. After reading the order dated April 24, 2025, this Court is of the considered view that the decision on the point of maintainability of the suit prevented the Court from disposing of the case on merits. To the mind of this Court, the learned trial Judge disposed of the suit upon a preliminary point by a decree dated April 24, 2025. Though the order dated April 24, 2025 records that the application under Order VII Rule 11 of the Code was allowed, this Court is of the considered view that the portion of the order allowing the application under Order VII Rule 11 of the Code got subsumed in the order disposing of the suit upon a preliminary point. Thus, in reality the order dated April 24, 2025 disposed of the suit upon a preliminary point, which undoubtedly satisfies the essential requirements of a “decree” as defined under Section 2(2) of the Code. 29. The decree dated April 24, 2025 was reversed by the appellate Court by an order dated July 01, 2025. The essential conditions for passing an order of remand under Order XLI Rule 23 of the Code namely disposal of the suit on a preliminary point and reversal of

such decree by the appellate Court exists in the case on hand. By the order dated July 01, 2025, the appellate Court remanded the case to the learned trial Judge for proper adjudication with a direction to take evidence as per the direction given in C.O. 22 of 2019 and decide the case after taking evidence and at the time of final adjudication of the case, to decide the issue on the maintainability point as first issue. 30. In view of the aforesaid discussion, this Court holds that the order dated July 01, 2025 was passed by the learned Judge of the first appellate Court in exercise of powers under Order XLI Rule 23 of the Code. To the mind of this Court, the order dated July 01, 2025 is not “decree” but an order which is one among those enumerated in Section 104 and an appeal would lie against such order under Section 104 read with Order XLIII Rule 1(u) of the Code. 31. Now the question arises whether availability of remedy by way of appeal bars the exercise of supervisory jurisdiction by the High Court under Article 227 of the Constitution of India. 32. The Hon'ble Supreme Court in the case Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society reported at (2019) 9 SCC 538 made a distinction between (i) cases where the alternative remedy is available before Civil courts in terms of the provisions of the Civil Procedure Code and (ii) cases where such remedy is available under special enactments and/or

statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. It was held therein that in cases which may involve civil suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of the Code, may have to be construed as a near total bar. It was further held that the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy is provided under the Code of Civil Procedure itself. The Hon'ble Supreme Court held thus- “12. But Courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before CivilCourts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before Civil Courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai, pointed out in Radhey Shyam v. Chhabi Nath that “orders of Civil Court stand on different footing from the orders of authorities or tribunals or Courts other than judicial/Civil Courts.

(emphasis supplied)

“…. an obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the Tribunal. Two questions may arise before a court for its determination. The court may determine both although only one of them may be necessary for the: ultimate decision of the case. The question which was necessary for the determination of the case would be the ‘ratio decidendi’; the opinion of the Tribunal on the question which was not necessary to decide the case would be only an ‘obiter dictum’.”

“It cannot be suggested that the doctrine of ‘obiter dicta’ was so far extended as to make the courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court, whether the question did or did not arise for the question did or did not arise for the determination of the higher judicial authority.”

Courts in India. The only opinion which would be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court.” (emphasis supplied)

observation on the issue whether the observation made in paragraphs 47 and 103 are “ratio decidendi” or “obiter dictum”. 44. For all the reasons as aforesaid, the instant application under Article 227 of the Constitution of India stands dismissed as not entertained. Petitioner will be at liberty to challenge the order impugned before the proper forum. It is , however, made clear that all observations made hereinbefore are only to support the ultimate conclusion of this Court. 45. There shall be, however, no order as to costs.

( HIRANMAY BHATTACHARYYA, J. )