Effect of non compliance of order 7 rule 1(j)
saurav
(Querist) 11 April 2012
This query is : Resolved
What will the effect if the plaint does not disclose that a previous suit between the same parties was instituted and was dismissed in default.
Adv.R.P.Chugh
(Expert) 11 April 2012
It does not fall within any of the conditions of O. 7 R 11 for rejection of plaint. However the Supreme Court has held that even supression of material facts (suppresio veri) is also a ground for rejection. Pendency of Previous proceedings is a material fact of great importance, if the bar of res judicata/res subjudice is to be attracted or otherwise if it is relevant (S.40-44 Evidence Act)
saurav
(Querist) 11 April 2012
Thanks for quick reply, may i please know the citation of the judgement.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 April 2012
There are no of citations dating back to PRIVY COUNCIL days. But why citations are needed.
Since how do you suppose that the other side will keep quite and will not bring it to the notice of the court.
prabhakar singh
(Expert) 11 April 2012
Order 9 of CPC is to be looked into carefully to decide the matter but unfortunately ,my dear brother,you have not stated the facts related to dismissal, the cause of dismissal of earlier suit ????
To my little knowledge when 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.Under rule dismissal is due to non compliance of order of service and under order rule 3 dismissal is due to non appearance of either party .BUT in cases where defendant appears but plaintiff absents and dismissal takes place
under rule 8,then decree of dismissal against plaintiff by dismissal bars a fresh suit under rule 9.
prabhakar singh
(Expert) 11 April 2012
So it depends !!!!
If earlier dismissal allows fresh suit then plaint can not be rejected unless it is time barred firstly and secondly no equitable relief is sought.Although fairness is the requirement of any pleading.
dev kapoor
(Expert) 14 April 2012
Hello,
Experts have very well ordained reply.But I wd like to add that 'dismissal of previous suit in default is not such an infirmity in the subsequent suit that the same may be dismissed on the grounds of concealment of this fact in next suit'.Even the plea of res judicata is not available to the defendant.In my humble opinion it does not have telling effect on the plaintiff's subsequent suit in any manner.Every suit has to be decided on its`own merits.
