rejection of plaint
ashutosh mishra
(Querist) 14 December 2011
This query is : Resolved
Plaintiffs have filed a suit of declaration.
They have stated that as the earlier suit was filed by their father was dismissed under order 9 rule 2 cpc,they are filing the present suit under order 9 rule 4 cpc.
There is no averments in the Present Plaint
1]about previous suit as to its no&Title of court & parties.;
2]date of filing and dismissal.;
3]the cause of action date pleaded in the previous suit;
4]the averments that no restoration was filed; or
5]the averments that how the present suit is with in limitation under article 58 of limitation and can lie under order 9 rule 4 cpc. Neither the order of dismissal nor the copy of previous suit is filed by them.
It is in this back drop that it is realized that suit has been wrongly instituted and should be rejected under o 7 rule 11 (a)&(d) of cpc as it does not comply the provisions of order 7 rule 1 (e) read with provisions contained in order 4 rule 1 sub rule (1) to(3).
EXPERTS MAY KINDLY ADVISE ABOUT THE MERIT IN OBJECTION IF RAISED U/O 7 RULE 11 CPC.CAN IT BE RAISED WITH SUCCESS OR NOT???
ajay sethi
(Expert) 14 December 2011
1)As per Order VII Rule 11, the plaint is liable to be rejected in the following cases:
"(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9;"
2)if the plaint does not disclose any causeof action and appears to be barred by limitation the court can reject the plaint .
3)For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane
ajay sethi
(Expert) 14 December 2011
In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors., (1998) 2 SCC 70, it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code.
) The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. (See T. Arivandandam v. T.V. Satyapal and Anr. (1977) 4 SCC 467).
It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487 only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
In Raptakos Brett & Co. Ltd. v. Ganesh Property (1998) 7 SCC 184, it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable.
ajay sethi
(Expert) 14 December 2011
Order 9, Rule 4 enacts that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his not paying the Court fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
in the present case in the fresh suit plaintiff has failed to mention details as to the dismiisal of suit , whether it is within period of limitation . in the absence of these details it would be difficult to satisfy the court as to why order of dismissal should be set aside .
prabhakar singh
(Expert) 14 December 2011
Any dispute resolution through court can take place only by institution of suit.
A suit is to be presented in the form of plaint in duplicate and should comply with the provisions of order VI as well as VII as far as practicable,any failure in this regard would be treated as if the suit has NOT been DULY INSTITUTED.[Order IV.Rule 1(3)C.P.C.]
Order VII Rule 1 lays about what a plain shall contain as of legal necessity and its sub clause(e)specifically requires a plaint to state "the facts constituting the cause of action and when it arose".
Then if a plaint has not been presented in duplicate the plaint shall stand rejected under O7R11(e).
And when a plaint does not disclose the cause of action it has to be rejected under O7R11(a).
And in case the suit appears to be barred by some law then it shall be rejected under O7R11(d).
Now you state that plaint simply states that a previous suit filled for same relief
stood dismissed hence a fresh suit has been filed under O9 R4 C.P.C.
O9R4 lays that "Where a suit is dismissed under rule 2 or rule 3,
the plaintiff may (subject to the law of limitation) bring a fresh suit,
or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for 1[such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
On a careful analysis it appears that for any dismissal u/O9 R2 or R3 a plaintiff whose cause of action pleaded in his dismissed suit is saved by law of limitation is, at two options [1]he may file a fresh suit,or[2] he may choose to file a restoration.
But to such a plaintiff of dismissed suit whose cause of action in the dismissed suit is not saved by law of limitation,has only one option ,that is to file restoration only.
Then as the fresh suit filed claiming it to lie under O9R4 as the previous suit dismissed under O9R2 should as of legal necessity clearly state that:
a]No restoration against the dismissal was filed ;and
b]the instituting date and cause of action date pleaded in earlier suit demonstrating clearly how the present suit is with in limitation.
UNLESS A SUIT PLEADS THE AFORESAID TWO ELEMENTS OF THE O9R4C.P.C.IN ITS' PLAINT, NO CAUSE OF ACTION CAN BE SAID TO HAVE BEEN CONSTITUTED FOR THE FRESH SUIT IN THE PLAINT,IN MY PERSONAL OPINION.HENCE YOU HAVE GOOD CASE TO PLEAD.
As regards to case law Mr. Sethi has provided you many.Here is one all in one summarized by Apex court.Ram Prakash Gupta vs Rajiv Kumar Gupta & Ors on 3 October, 2007
Author: P Sathasivam
Bench: T Chatterjee, P Sathasivam
CASE NO.:
Appeal (civil) 4626 of 2007
PETITIONER:
Ram Prakash Gupta
RESPONDENT:
Rajiv Kumar Gupta & Ors
DATE OF JUDGMENT: 03/10/2007
With this addition on my part, I concur Mr.Sethis' opinion.
Guest
(Expert) 15 December 2011
Agree with experts.
Raj Kumar Makkad
(Expert) 15 December 2011
I also endorse the views of experts on this subject.
Dr J C Vashista
(Expert) 20 December 2011
Excellent comments by Mr. Sethi, I fully agree.
Suit can be rejected under the provisons of Order VII on the aforesaid 4 circumstances (mainly no cause of action and deficient court fee) which is curable by plaintiff and need not file afresh.
Order IX deals with dismmissal of suit which is required to be reinstated and/or refiled.
