20 October 2010
yes, since in the provision itself "Barred by law" a ground for return of plaint. you need not require any judicial pronouncement in this regard. however, the reason/ground taken by you must show that the suit is barred by law.
20 October 2010
When you say "barred by law", that fact should emerge from the contents of the plaint itself. So, please indicate what is the specific basis / content in the plaint filed by the plaintiff, which accirding to you renders the plaint "barred by law". Only when you indicate this point specifically (that is you should state what is the statement made in plaint which makes it barred by law), will it be possible for any one to say whether you can plead the same or not.
20 October 2010
Dear Mr. Niranjan, What you say is not correct. In fact Apex Court has clearly held that since the question whether the suit is barred by law is to be decided purely on the basis of the averments contained in the plaint, and an application u/o 7 r 11 has to be decided first without insisting upon the filing of written statement by the defendant.
21 October 2010
Dear Naresh ji before filing a petition for rejection of plaint you must follow the following ground (11) Rejection of Plaint: - The plaint shall be rejected in the following grounds 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 byany law; e) Where it is not filed in duplicate; f) Where the plaintiff fails to comply sub-rule (2) of Rule 9. g) Where the plaintiff fails to comply sub-rule (3) of Rule 9. Further I must say it can be filed at any stage after filing of WS.I am also attaching one full judgement of Orissa High court and other judgements which I have used in a recent case of myne for the ground suit is under valued and proper court fees have not been paid,so these are for your reference. Memo of citation filed on behalf of the Defendant No.1 & 6 in relation to petition U/Or 7 Rule-11
Sl. No Description Ref. Journal 1) T. Arivandandam Vrs. T.V. Satyapal & Others (B) Civil Procedure Code Section 35(a) Order VII Rule 11 & 10 – Duties of the Court in curbing frivolous and vexatious cases …………. is altogether groundless,
The pathology of litigative ………….. that an advocate is an officer of justice and its society not to Collaborate in shady action.
1977 STPL(LE) 8662 SC
1977 AIR (SC) -2421
2) Samar Singh Vrs. Kedarnath & Others Representation of peoples Act – Civil Procedure Code Order VII Rule -11 …………..election – Preliminary objection to the maintainability of the election petition. If the election petition dos not disclose any cause of action ……………………. 1987 STPL(LE) 13726 SC 1987 AIR (SC) - 1926 3) Sri Ainthi Dalabeheera & Others Vrs. Govt. of Orissa (2) CPC Order VII Rule 11 – Rejection of plaint – Provision of Order VII Rule 11 are imperative and can operate at any stage ………. Stage subsequently. (Para -9) 1992(1) OLR 154 4) Nandakishore Nayak & Others Vrs. State of Orissa. 3. CPC Order VII Rule 11 – a plaint shall not be admitted ……………………..Derection in the regard issued (Para-11) 2003 (1) OLR – 473 5) Jagannath Mothers & others Vrs. Rushikulya Gramya Banks & Others – Civil Procedure Code Order VII Rule 11 – Rejection of plaint – under valuation of suit whether question relating to valuation ……………………… when defendant files a petition alleging improper valuation of suit then trial court scrutinize the matter thoroughly (Para -8) 2008(1) Civil Court Cases 249 (Orissa).Regards Silabhadra Sastry,Advocate,Bhubaneswar
21 October 2010
Pl go through this full text also 2008(1) CIVIL COURT CASES 249 (ORISSA) ORISSA HIGH COURT PRADIP MOHANTY, J. Civil Revision Petition No.7 of 2007, D/31.08.2007. M/s.Jagannath Motors & Anr. Vs Rushikulya Gramya Bank & Ors. Civil Procedure Code, 1908, O.7.R.11 — Rejection of plaint - If relief claimed is undervalued, then plaint is to be rejected - Plaint is also liable to be rejected for nondisclosure of cause of action. (Para 6) Civil Procedure Code, 1908, O.7.R.11 — Rejection of plaint - Undervaluation of suit - Where plaint itself shows that suit is undervalued, Court to call upon the plaintiff to correct the valuation within the time fixed by it and on failure to do so, plaint to be rejected. (Para 7) Civil Procedure Code, 1908, O.7.R.11 — Rejection of plaint - Undervaluation of suit - Whether question relating to valuation of suit can be dealt with only at the stage of final adjudication of the suit - Held, no - When defendant files a petition alleging improper valuation of suit then trial Court should scrutinize the matter thoroughly. (Para 8) M/s.Jagannath Motors Vs Rushikulya Gramya Bank 250 CIVIL COURT CASES 2008(1) Cases referred: AIR 1977 SC 2421 (Para 5); AIR 1983 Rajasthan 1 (Para 5); AIR 1985 Orissa 197 (Para 5); 1992(1) OLR 154 (Para 5); 1995(II) OLR 16 (Para 5); 2003(1) OLR 473 (Para 5). Counsels: M/s.S.S.Rao & Mr.B.K.Mohanty M/s.C.A.Rao, Mr.S.K.Behera & Mr.A.K.Rath, for the Opp.Party No.1 M/s.A.R.Dash, Mr.R.N.Behera, Mr.M.C.Swain, Mr.B.Mohapatra & Mr.S.N.Sahoo, for the Opp.Party No.2. JUDGMENT Pradip Mohanty, J. - In this civil revision, the petitioners seek to assail the order dated 10.01.2007 passed in B.P.No.3 of 2005 by the Civil Judge (Senior Division), Bhanjanagar, Ganjam rejecting the application under Order 7 Rule 11 CPC. 2. Brief facts of the case are that opposite party No.1 has filed a suit for preliminary decree against the petitioners and others in the Court of the Civil Judge (Senior. Division). Bhanjanagar, Ganjam, which has been registered as B.P.No.3 of 2005. The said suit was filed on 23.03.2005. The petitioners after notice entered appearance and filed their written statement together with an application under Order 7 Rule 11 of the CPC to reject the plaint. But the learned Civil Judge dismissed the said application on 10.01.2007 with the finding that the plaint cannot be rejected on the ground of absence of cause of action. So far as the question of valuation and payment of court-fee is concerned, the trial Court held that the suit had been admitted after checking up the court-fee and that if at all the suit was undervalued, it would be decided during trial. 3. Counsel for the petitioners submits that the impugned order is illegal and erroneous inasmuch as since the plaint was admitted, the question relating to valuation should have been dealt with at that stage. But the trial Court has observed that the question relating to valuation can be dealt with only at the stage of final adjudication of the suit. 4. Mr.Rao, learned counsel for opposite party No.1 submits that the suit has been properly valued, proper court-fee amount has been paid thereon and so the order of the Civil Judge is legal. The trial Court has rightly observed that if the suit is undervalued, that can be dealt with at the time of trial. 5. Counsel for the parties relied upon the decisions reported in T. Arivandandam v. T.V.Satyapal, AIR 1977 SC 2421; Ranjeet Mal v. Poonam Chand, AIR 1983 Rajasthan 1; Sivananda Roy v. Janaki, Ballav Pattnalk, AIR 1985 Orissa 197; Sri Ainthi Dalabehera v. Government of Orissa 1992(I) OLR 154; Orissa Mining Corporation Ltd. v. Mis.Klockner & Co.,1995(II) OLR 16; and Nandakishore Nayak v. State of Orissa, 2003(1) OLR 473. 6. Perused the impugned order, copy of the plaint, notes submitted by the parties and the decisions cited by them as well as the provisions of law. For better appreciation of the matter, the provisions of Order 7 Rule 11 CPC is quoted below: “11. Rejection of plaint - The plaint shall 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 returned 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; 2008(1) 251 (d) where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9.” From a bare reading of the above provisions, it is crystal clear that if the relief claimed is undervalued, the plaint is to be rejected. Further, for non-disclosure of cause of action also the plaint is liable to be rejected. 7. In Sivananda Roy (supra), it was held that if the plaint is found to be a superfluous one, it should be rejected at the threshold. It was also held that the plaint can be rejected at any stage if the Court feels that the cause of action has not been disclosed. In the said decision, this Court relied upon the judgment of the Apex Court rendered in T.Arivandandam (supra). In the case of Ainthi Dalabehera (supra), this Court held that where the plaint itself shows that the suit is undervalued, the trial Court shall call upon the plaintiff to correct the valuation within the time fixed by it. On his failure to do so, it shall reject the plaint. In Nandakishore Nayak (supra), it has been held that where there is defect in valuation or non-payment of Court fee in accordance with law the plaint shall not be admitted. 8. After examining the matter in the light of the ratio decided in the above decisions, this Court comes to the conclusion that the observation made by the trial Court that the valuation of the suit shall be examined at the time of trial is not correct. Of course, valuation of a suit and payment of court-fee is a matter between the plaintiff and the Court, and the defendant has no say in that respect. But, if the suit is not properly valued or required Court-fee is not paid, the plaint shall not be admitted. When the defendants filed a petition alleging therein about improper valuation of the suit, the trial Court should have scrutinized the matter thoroughly. So far as the question of nondisclosure of the cause of action in the plaint is concerned, although the plaintiffopposite No.1 has not mentioned as to on which particular date demand was made against the defendant-petitioners for payment of the outstanding amount, the fact remains that obviously the defendant-petitioners have been sued for non-payment of the loan taken from the bank under an open credit scheme. Therefore, it cannot be said that the plaint is devoid of any cause of action. 9. For the reasons stated above, this Court sets aside the impugned order so far as it relates to consideration of the question of valuation of the suit and remits the matter back to the trial Court for re-examination on that point alone. 10. In the result, the Civil Revision is allowed in part to the extent indicated above. Revision allowed in part. *****