presentation of plaint order

Order 7: Plaint

1. Particulars to be contained in plaint.— The plaint shall contain the following particulars:—

( a ) the name of the Court in which the suit is brought; ( b ) the name, description and place of residence of the plaintiff; ( c ) the name, description and place of residence of the defendant, so far as they can be ascertained; ( d ) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; ( e ) the facts constituting the cause of action and when it arose; ( f ) the facts showing that the Court has jurisdiction; ( g ) the relief which the plaintiff claims; ( h ) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and ( i ) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.

2. In money suits. —Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed :

But where the plaintiff sues for mesne profits ,  or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for.

2A. Where interest is sought in the suit,  — ( 1 ) Where the plaintiff seeks interest, the plaint shall contain a statement to that effect along with the details set out under sub-rules ( 2 ) and ( 3 ). ( 2 ) Where the plaintiff seeks interest, the plaint shall state whether the plaintiff is seeking interest in

relation to a commercial transaction within the meaning of section 34 of the Code of Civil Procedure, 1908 (5 of 1908) and, furthermore, if the plaintiff is doing so under the terms of a contract or under an Act, in which case the Act is to be specified in the plaint; or on some other basis and shall state the basis of that.

( 3 ) Pleadings shall also state— ( a ) the rate at which interest is claimed; ( b ) the date from which it is claimed; ( c ) the date to which it is calculated; ( d ) the total amount of interest claimed to the date of calculation; and ( e ) the daily rate at which interest accrues after that date.]

3. Where the subject-matter of the suit is immovable property.— Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

4. When plaintiff sues as representative.— Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.

5. Defendant’s interest and liability to be shown.— The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.

6. Grounds of exemption from limitation law.— Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed :

Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.

7. Relief to be specifically stated.— Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

8. Relief founded on separate grounds.— Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.

9. Procedure on admitting plaint.— Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.

110. Return of plaint.— ( 1 ) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.—  For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

( 2 )  Procedure on returning plaint.  —On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.— ( 1 ) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

( 2 ) Where an intimation is given to the plaintiff under sub-rule  (1),  the plaintiff may make an application to the Court—

( a ) specifying the Court in which he proposes to present the plaint after its return, ( b ) praying that the Court may fix a date for the appearance of the parties in the said Court, and ( c ) requesting that the notice of the date so fixed may be given to him and to the defendant.

( 3 ) Where an application is made by the plaintiff under sub-rule  (2),  the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,—

( a ) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

( b ) give to the plaintiff and to the defendant notice of such date for appearance. ( 4 ) Where the notice of the date for appearance is given under sub-rule  (3),—

( a ) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and

( b ) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

( 5 ) Where the application made by the plaintiff under sub-rule  (2)  is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.

10B. Power of appellate Court to transfer suit to the proper Court.—  (1)  Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted, (whether such Court is within or without the State in which the Court hearing the appeal is situated), and fix a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.

( 2 ) The direction made by the Court under sub-rule  (1)  shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.

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; ( 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:

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.

12. Procedure on rejecting plaint.— Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.

13. Where rejection of plaint does not preclude presentation of fresh plaint.— The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Documents relied on in plaint

14. Production of document on which plaintiff sues or relies.— ( 1 ) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

( 2 ) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

( 3 ) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

( 4 ) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.

15.  omitted by Act  46  of  1999 s. 17  (w.e.f.  1-7-2002).

16 .  Suits on lost negotiable instruments.— Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

17. Production of shop-book.—( 1 ) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 (XVIII of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.

( 2 )  Original entry to be marked and returned. —The Court or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.

18. Omitted by Act  22  of  2002 , s.  8  (w. e. f.  1-7-2002).

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Code of Civil Procedure

Home / code of civil procedure,  19-dec-2023.

• Civil Procedure Code, 1908 (CPC)

Introduction

The expression plaint has not been defined in the Code of Civil Procedure, 1908 (CPC) . It can be said to be a statement of claim, a document by presentation of which the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff.

• Order VII of CPC contains the provision in relation to plaint.

Rules Regarding the Plaint

• Rule 1 of Order IV lays down that a plaint is to be presented in duplicate to the Court or such officer as may be appointed by the Court.
• Every plaint shall comply with the rules contained in Orders VI and VII of CPC.
• A suit is instituted when the plaint is presented and not when the suit is registered.

Particulars to be Contained in a Plaint

• The plaint shall contain the following particulars: —

(a) The name of the Court in which the suit is brought.

(b) The name, description and place of residence of the plaintiff.

(c) The name, description and place of residence of the defendant, so far as they can be ascertained.

(d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect.

(e) The facts constituting the cause of action and when it arose.

(f) The facts showing that the Court has jurisdiction.

(g) The relief which the plaintiff claims.

(h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed, or relinquished.

(i) A statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.

Relief to be Specifically Stated in a Plaint

• As per Rule 7 of Order VII, every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for.
• As per Rule 8 of Order VII, where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.

Procedure on Admitting Plaint

• As per Rule 9 of Order VII , where the Court orders that the summons be served on the defendants in the manner provided in Rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.

Return of Plaint

• Rule 10 deals with the return of plaint. It states that -

(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation. — For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint —On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

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 the 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.

(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.

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.

Procedure on Rejecting Plaint

• As per Rule 12 of Order VII, where a plaint is rejected, the Judge shall record an order to that effect with the reasons for such an order.
• In Mayar H.K. Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (2006) , the Supreme Court held that the grounds for rejection of plaint specified in Rule 11 of Order VII of CPC are not exhaustive.
• In Sopan Sukhdeo Sable v. Asst. Charity Commr. (2004) , the Supreme Court held that a plaint cannot be rejected in part and retained in part. It should be rejected as a whole.

Institution of Suit under CPC

Institution of suit under CPC is the initial stage of the procedure of a civil suit. Institution of suit under CPC means presenting a plaint along with other documents before the court i.e. the institution of suit under CPC. Institution of suits and provisions relating to the institution of suits laid down under Section 26 and Order 4 of the Code of Civil Procedure Code, 1908.

Table of Contents

Institution of Suit under CPC – Section 26

The institution of suits is the primary stage of any civil proceeding in the suit. The provisions relating to the Institution of Suits are governed under section 26 read along with Order 4 of the Civil Procedure Code.

According to Section 26 of the CPC;

• Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
• In every plaint, facts shall be proved by affidavit.

Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of Rule 15A

According to Order IV of the CPC;

• Every suit shall be instituted by presenting [plaint in duplicate to the Court or such officer as it appoints on this behalf.
• Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
• The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).

Herein, order IV should be read along with section 26 of CPC. According to this provision, a lawsuit can only be considered adequately commenced if it is presented to the court directly or to a proper official designated in this capacity with a plaint and a duplicate plaint. The requirements specified in Orders VI and VII must be followed by the plaint before presenting the suit.

• What is a Suit?
• Hierarchy of Civil Courts in India
• Difference Between Decree, Order and Judgment
• Jurisdiction of Civil Court and Types of Jurisdiction

The Procedure of Institution of Suit under CPC

The procedure for the institution of suits includes the following;

• Preparation of a Plaint,
• Place of Suing,
• Presentation of a Plaint,
• Registration of Suit.

1. Preparation of a Plaint

The term  “plaint”  has not been defined anywhere in the Civil Procedure Code, 1908. Generally, the meaning of plaint can be defined as “Plaint is a document where statements are written on the grounds of complaint or allegations made to a court of law and preying for legal relief.

A plaint is a legal document in which a plaintiff pleads to the court for restitution for any legal injury inflicted by the defendant. There is no strict format for drafting a plaint. Order VII, Rule 1 of the CPC , specifies rules about the particulars to be included in the plaint are provided. A plaint must include the following:

• Name of the court where the suit is filed;
• Plaintiff’s name, description, and address;
• Name, description and address of the defendant, as it can be ascertained;
• A statement to that effect is required when either the plaintiff or the defendant is a minor or a person of unsound mind;
• Facts constituting the cause of action and when it arose;
• Facts proving the jurisdiction of the court;
• The relief that the plaintiff requests to claim;
• If the plaintiff has approved a set-off or waived a portion of his claim, the amount allowed or waived; and
• A statement of the value of the subject matter of the suit for the purposes of jurisdiction and court costs, to the extent permitted as per the case.

2. Place of Suing

Place of suing in CPC   plays an important role in the civil proceedings. However, the place of suing directly deals with the authority of a court to hear and decide the suit. Therefore, choosing the court totally depends upon the contents of the plaint. Moreover, the place of suing refers to the jurisdictional aspect.

According to section 9 of the Code of Civil Procedure Code, 1908, it is stated that “the courts shall have jurisdiction to try all suits of civil nature except in suits of which their cognizance is either expressly or impliedly barred.

The jurisdiction of the court is decided by the legislature, parties to a suit and valuation of the suit property. Hence, merely framing the plaint or contents in the plaint cannot interfere with the extent of the jurisdiction of the court.

But, the parties to the suit choose a court amongst various courts if they have the same jurisdiction as the other court. In the case of  Mt. Ananti v/s Chhannu And Ors. AIR 1930 Al 193 , the court held that “ The plaintiff chooses his forum and files his suit, and if he establishes the correctness of the facts then he will get his relief from the forum chosen.”

According to section 15 of the CPC, it is stated that  “every suit shall be instituted in the court of lowest grade which is competent to entertain the suit. 

Place of suing in CPC   is provided in section 15 of CPC, which deals with the pecuniary jurisdiction, sections 16 to 18 deal with the suing for immovable property, section 20 deals with a residuary or cause of action arising, section 21 deals with the waiving of defects and section 21A deals with the bar to challenge the decree passed in the former suit. These are the provisions of the place of suing in CPC.

Therefore, the place of suing is classified on the basis of the kinds of jurisdiction. The place of suing is based on;

• Pecuniary Jurisdiction (Sec. 15)
• Territorial Jurisdiction (Sec. 16 to 20)

3. Presentation of a Plaint

The rules regarding the presentation of the plaint are found in Section 26 and Order IV of the CPC, 1908. Rule 1 of Order IV states that –

• The court or the officer designated in this regard must receive a petition /plaint in duplicate before the filing of a lawsuit.
• The Rules in Orders VI and VII must be followed by each and every party to the suit.
• If the litigation does not meet the standards outlined in sub-rules (1) and (2), it will not be considered to have been properly instituted.

Therefore, it is provided in section 26 that every suit must be started with the filing of a pliant or in another way that may be required.

The presentation of a plaint in a court of law can be done by an aggrieved individual, his attorney, his designated agent or any other person who is lawfully authorised by him. 

4. Registration of Suit

Rule 2 of Order IV provides that the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the Register of civil suits after the Court fees have been paid correctly in the Court having pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the Court and divides the Courts on a vertical basis. It is different for different district Courts in various states e.g. Currently, the pecuniary jurisdiction of the Delhi courts is Suits amounting to Rs.1 – Rs.20, 00,000 and territorial jurisdiction. Territorial jurisdiction deals with the area-wise jurisdiction of various courts which is decided by taking numerous factors into consideration.

Such entries shall be numbered every year according to the order in which the plaints are admitted. Thus, after the presentation, the suit will be numbered along with being scrutinised by the Stamp Reporter.

Once all these steps have been taken care of, a suit is successfully instituted before a Civil Court. 

Duties of Lawyer at the Time of Institution of Suit

• Preparing the plaint and pleadings as per the provisions of orders VI and VII.
• Attach the necessary documents along with the suit by considering Order VII rule 14.
• Make a valuation of the suit as per the provisions of the Court Fees Act.
• Supply necessary copies of the Plaint and documents to the court and to the opposite party.
• Get an examination of the plaint done through the office of the court.
• Issue summons to the defendant through the court by making payment of due process or as per all other modes provided under Order V of the Code of Civil Procedure.
• Attach address memo with plaint as per Order VI Rule 14A.

Frequently Asked Questions

What is the limitation period for institution of suit under cpc?

The appeals against a decree or order must be submitted in any court within thirty days after the date of the decree or order being appealed, and in the High Court within ninety days. A time limit on litigation is necessary for everyone’s welfare.

What is an institution of a suit under Section 26 Order 4?

In order to extend the law as specified in Section 26 of the CPC, Rule 1 of Order IV must be interpreted in conjunction with that section. According to this rule, a lawsuit can only be considered properly launched if a complaint is used, it is presented in duplicate, and it is presented either directly to the court or to an appropriate officer designated in this regard.

Where can a suit be instituted in CPC?

The lawsuit may be filed in any court that has local jurisdiction over any area where the subject property is located, provided that the court has jurisdiction over the entire claim with regard to the value of the claim’s subject matter.

Institution of suit under CPC  can be done by the presentation of plaint before the competent court. There are so many major and minor principles of the institution of suits. The process of a lawsuit is started with the filing of the plaint. The place of suing plays a major role in a suit as it directly deals with the authority of a court to pass a decree. Choosing a court depends upon the contents of plaint one is filing. It refers to the jurisdictional aspect. 

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• Nov 3, 2022

CPC- Suit: Meaning| Essentials|Institution of a Suit

Meaning of a suit.

The term ‘suit’ has not been defined in the CPC, 1908. Generally, it is understood as a proceeding that commences upon the presentation of a plaint in a civil court.

A plaint is a statement in writing of a cause of action in which the relief claimed is set out in detail.

The Black’s Law Dictionary defines a suit as the proceeding initiated by a party or parties against another in the court of law.

Provisions regarding institution of a suit are specified under Section 26 and Orders I, II, IV, VI, VII.

Essentials of a Suit

There are four essentials of a suit which are explained as follows:

1. Parties ( Order I )

In a suit, there must be at least two parties i.e. the plaintiff and the defendant. There is no bar as to the maximum numbers of plaintiffs or defendants.

There are two categories of parties viz. necessary party and proper party. The significance of the necessary party in a suit is that the presence of such a party is vital to the constitution of the suit and the relief is sought against such party and without such party, no effective order can be passed. A proper party is one in whose absence an effective order can be passed, nonetheless whose presence is necessary for a complete and final decision on the question involved in the proceeding.

2. Subject Matter

There must be a subject matter i.e. a set of facts which have to be proved to enable the plaintiff to get the relief claimed by him. It includes the cause of action.

3. Cause of Action ( Order II, Rules 3, 6 and 7 )

It contains a set of facts or circumstances that the plaintiff is required to prove before he can succeed. It serves as the foundation of the suit. It includes all the essential facts which constitute the right of a plaintiff and its alleged infringement and thus it is an antecedent to the filing or institution of any suit. The facts must be mentioned in clear and unambiguous terms. A person is a party to the suit if there lies a cause of action against him.

4. Relief claimed by the plaintiff

Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court will give relief unless it is specifically claimed by the parties to the suit. There are two types of reliefs: Specific and Alternative.

Institution of a Suit under CPC, 1908

There are various stages of a suit viz. institution of suit or commencement of suit, service of summons, written statements, first hearing and framing of issues, production of evidence and final hearing, arguments, judgment, preparation of a decree and its execution.

The focus of this article is to deal with the first stage i.e. Institution of a suit. The institution of a suit consists of the following steps:

1. Filing of a plaint

Order VII deals with the format of a plaint and contains various rules.

Pleadings are defined as pleadings as “a plaint or a written statement” in Order VI Rule I of the CPC, 1908. Plaint is the first step to initiate the filing of a suit. The document containing various facts and circumstances regarding the Plaintiff’s grievance is filed by the plaintiff after hiring a counsel and such a document is called a plaint.

2. Amendment of Pleadings

The Court may, at any stage of the proceedings, allow either party to alter or amend its pleadings in such manner and on such terms as may be just ( Rule 17 of Order VI of CPC, 1908), and all such amendments shall be made when it is necessary for determination of real question in controversy or is just and proper or is necessary in the interest of justice.

3. Place of suing

The place of suing plays a major role in a suit as it directly deals with the authority of a court to pass a decree. Choosing a court depends upon the contents of plaint one is filing. It refers to the jurisdictional aspect. Section 9 of CPC, 1908 provides that the Courts shall have jurisdiction to try all suits of a civil nature except in suits of which their cognizance is either expressly or impliedly barred.

Section 15 of Civil Procedure Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it. On the filing of the suit, the Court must ascertain whether it has jurisdiction to entertain it. In cases where the jurisdiction is challenged by filing a petition by the defendant(s) to reject the plaint under Order VII- Rule 11 CPC. The want of jurisdiction is merely an irregularity of the proceedings and the Court has the power to rectify it.

Presentation of the plaint ( When does the suit commence? )

The moment the plaint is filed it leads to the institution of the suit as it is provided in Section 26 of CPC, 1908 provides that every suit under shall be instituted by the presentation of a plaint or in such other manner as may be prescribed and the contents of such plaint shall be proved by an affidavit as per the amendment of 2002.

Thus, a plaint is rightly filed by complying with the provisions of Order IV- Rule 1 of CPC, 1908. The plaint may be presented either by the affected person himself, or by his advocate or by his recognised agent or by any person duly authorised by him.

Time and Place of Presentation

Ordinarily, the presentation of a plaint must be on a working day and during the office hours. But there is no rule regarding it being made either at a particular place or time

Registration of Suits

Rule 2 of Order IV provides that the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the Register of civil suits after the Court fees have been paid correctly in the Court having pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the Court and divides the Courts on a vertical basis.

Territorial jurisdiction deals with the area wise jurisdiction of various courts which is decided by taking numerous factors into consideration.

Such entries shall be numbered in every year according to the order in which the plaints are admitted. Thus, after the presentation, the suit will be numbered along with being scrutinised by the Stamp Reporter .

Once all these steps have been taken care of, a suit is successfully instituted before a Civil Court.

• Civil Procedure

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Very informative and nicely articulated. Thanks Aniket for your valuable contribution.

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Framing and Institution of Suits- CPC,1908

The term ‘suit’ is used to refer to a proceeding by a person(s) against another in a Court where the plaintiff seeks remedy. In short, in CPC, it is a civil proceeding instituted by the presentation of a plaint. Frame and institution of suits are few of the basic requirements to file a suit.

Table of Contents

FRAMING OF SUITS

The provision under Order 2 Rule 2 is based on the principle that a defendant should not be contested twice for the same cause[1].

The principle in this provision is provided to counteract two evils:

• Splitting up of claims
• Splitting up of remedies.

In Naba Kumar v. Radhashyam[2], the Privy council had stated ‘the rule that is in question aims to deal with the wrong of splitting causes of action. In a suit the whole of any claim should be mentioned which the plaintiff is entitled and if he omits to sue for any such relief, he is not allowed to claim it in a second suit.

Thus, the object is to prevent filing of a number of suits relating to the same transaction.

INCLUSION OF WHOLE CLAIM

Whole of the claim of the plaintiff in respect of a cause of action should be written in every suit. Rule 1 says that every matter in the dispute, shall be finally disposed of,  ‘as far as practicable’  to prevent any further litigation.

Here, the expression ‘as far as practicable’, means that the court will see in every case that whether for the plaintiff, it was practicable to frame his suit to include a cause of action which he had omitted or had intentionally relinquished.

SPLITTING OF CLAIM

In every suit should be included the whole of the claim to which the plaintiff is entitled.  If the plaintiff did not include or intentionally relinquished any portion of such claim then he won’t be afterwards permitted to file a suit in respect of such portion that was omitted or relinquished. In Kunjan Nair v. Narayanan Nair[3], it was also held that the true object of law would not stand fully served by holding that the provisions under Order 2 rule 2 be applied only if the previously filed suit is disposed of and does not apply in any situation when a subsequent suit is filed during the pendency of the previous suit. This rule will apply to both the situations[4].

ORDER 2 AND RES JUDICATA

Order 2 provides for prohibition of splitting of claims as:

• That every suit should have the whole of the claim included, the plaintiff is entitled but to bring that suit within the court’s jurisdiction, he may give up any portion of such claim.
• When the plaintiff omits or intentionally relinquishes any portion of his claim, then he cannot sue afterwards in respect of that.
• If a person is entitled to more than one relief in respect of the same cause of action and without the permission of the court he omits to sue for one of such reliefs, cannot afterwards sue for such it.

Talking about res judicata, it differs from the above provision as:-

• Res judicata refers to a plaintiff’s duty to bring forward all the grounds of attack in support of his claim; while order 2 rule 2 only requires a plaintiff to claim all reliefs arising from the same cause of action.
• Res judicata refers to both the parties and prevents a suit as well as a defense, while provision of order 2 rule 2 refers only to a plaintiff and bars a suit[5].

Following three conditions must be satisfied for the applicability of Order 2:-

• Same cause of action : To bar the second suit by applying order 2 rule 2, it is to be proved that it is based on the same cause of action on which the previous suit was based, or else there could not be bar to the subsequent suit. The cause of action should be the same and not merely be similar. The plaintiff cannot split into parts to bring a separate suit in respect of those parts. The test, not a conclusive one, to check if the cause of action in the second suit is the same or not is whether the same evidence will assist and help both the previous and subsequent suits and if the subsequent suit is based on different causes of action, this rule will not apply[6].Even if they arise from the same transaction but cause of action is not the same, the rule does not apply. 
• One of several reliefs : For example, a plaintiff files a for breach of contract and does not claim one or more of the reliefs, then a subsequent suit is barred for such portion so omitted. Thus, this rule applies when the plaintiff is entitled to two or more reliefs in respect of the same cause of action and omits to sue all such reliefs. However, this rule does not apply when the right of relief in respect of which the subsequent suit is filed, did not subsist at the time of the first suit[7]; or the petitioner couldn’t have claimed that relief in the previous suit[8].  ‘A right that a litigant didn’t know or which did not exist at the time of the previous suit, cannot be regarded as a ‘portion of his claim’ within the meaning of this rule.
• Leave of court : This rule does not apply when the leave of the court is obtained. Thus, if omission is with the court’s permission, then a subsequent suit in respect of the same cause of action is not barred. Such leave can be obtained at any stage[9]. It is on the discretion of the court to grant leave.

JOINDER OF CLAIMS

The joinder of claims is provided in provisions of rules 4 and 5.

Rule 4 says that in any suit for the repossession of an immovable property, a plaintiff is not entitled to join any claim without the leave of the court. But there are certain exceptions to this rule in which plaintiff can join a claim even without the leave of the court-

• Where claim is for mesne profits or arrears of rent in respect of the property;
• Where claim is for damages for breach of any contract under which the property or any part thereof is held; and
• Where the claim in which aid is sought, is found on the same cause of action.

Rule 5 deals with suits by or against: executors, administrators and heirs. No claim by or against these persons, in their representative capacity, may be joined with claims by or against them personally in the same suit , except in following cases-

• When the personal claims is with reference to the estate he represents; or
• When he was entitled to or liable for those claims jointly with the deceased whom he represents.

The objective behind such provisions is to prevent a representative from uniting the assets of his testator with his own properties.

JOINDER OF CAUSES OF ACTION

Rules 3 and 6 deal with the provisions of joinder of causes of action.

Rule 3 allows joinder of some causes of action of one suit in certain situations but is subject to the provisions of this Code. It provides for following types of situations:-

1.  One plaintiff, one defendant and several causes of action: – In such cases, the complainant may join in the same suit several causes of action. But if in the opinion of the court the joinder of causes of action may cause unsettling or delay in the trial, then the court may order separate trials.

2. Joinder of plaintiffs and causes of action:- In case of more than two complainants and several causes of action , the complainants may join the causes of action in a single suit against the defendant if they are interested jointly. But they may be joined on the fulfillment of following conditions[10].

• The causes of action must be arisen from the same transaction; and
• Common questions of law or fact must be involved.

If these conditions remain unfulfilled, and the plaintiffs are not jointly interested then the suit will be bad for misjoinder of plaintiffs and causes of action.

3. Joinder of defendants and causes of action: – In case of one complainant and more than one defendants and several causes of action, the complainant may join in a single suit several causes of action, if the defendants are jointly interested in the causes of action, provided following conditions are fulfilled[11].

• The relief claimed should be based on the same act or transaction; and

If defendants have been joined in cases where the causes of action are separate and the right of aid claimed is not based on the same act or transaction or any of the above conditions remain unfulfilled, then it will be a misjoinder of defendants and causes of action.

4. Joinder of plaintiffs and defendants; and causes of action :- In case of two or more plaintiffs, defendants and several causes of action, the plaintiffs may unite such causes of action in a single suit when all the plaintiffs are jointly interested and also the defendants are interested in the same.

In addition, the following must be noted with regards to Joinder of Parties:

• If plaintiffs are not interested jointly- the suit will be bad for misjoinder of plaintiffs and causes of action;
• If defendants are not interested jointly- the suit will be bad for multifariousness;
• If  both plaintiffs and defendants are not jointly interested- the suit will be bad for double misjoinder.

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INSTITUTION OF SUITS

The provisions for institution of suit is provided u/s 26 and order 4 of the code. Order 4 deals with the parties to a suit, addition, deletion and substitution of parties and the objection as to non-joinder and mis-joinder.

A suit is instituted on the presentation of a ‘plaint’. The expression ‘plaint’ has not been defined in the Code but it means the exhibition of an action in writing[12].

PRESENTATION OF PLAINT

Section 26 and Order 4 Rule 1 provide that every suit must be instituted by the presentation of a plaint in duplicate or in any other manner that may be prescribed by the Code, by the plaintiff himself or his representatives.

TIME AND PLACE OF PRESENTATION

There is no rule as to a particular place or particular time of presentation but a plaint shall be presented before the court or to such officer as the court appoints[13]. Generally, it is presented on the working days and during the office hours but a judge may accept it at his residence or at any other place, any time. Though, the judge is not bound for such an acceptance, but if it is the last day of limitation and is not too inconvenient for him, he shall accept it. 

After acceptance, the particulars are to be entered in a book called register of suits[14]. The particulars to be entered are: parties to the suit, cause of action, jurisdiction of court, valuation, etc.  After presentation, the plaint is scrutinized by the stamp reporter and the defects, if any, are removed by the plaintiff or his advocate and then the suit will be numbered.

SUITS BY INDIGENT PERSON

Order 33 deals with the suits by ‘paupers’. The object is to make it possible for indigent persons to institute any suit without payment of any court fees. Rule 1 gives the definition of an indigent person, as: 

• A person who is not possessed of  ‘sufficient means’ so that he can pay the fee. Here ‘sufficient means’ refers to the ability of that person to raise money by available lawful means for fee, or
• The person who is not entitled to property worth Rs 1000.

Rule 2 provides for the following particulars that are required to be contained in an application to sue by an indigent person:-

• Particulars of plaint;
• Details of any movable or immovable property belonging to that person with the estimated value;
• Signature and verification as under order 6 rules 14 and 15.

Such application shall be presented by the applicant unless exempted by the court and in case of two or more plaintiffs, any of them can present it [15].

Following are the cases in which the plaint shall be rejected[16]:-

• If the application is not framed and presented as prescribed; or
• If the applicant is not an indigent person; or
• If that person applying has, within two months till such presentation, disposed of any of his property fraudulently or to get permission to sue an indigent person; or
• If there’s no cause of action; or
• It the applicant has entered into an agreement with reference to subject matter in which the interest is obtained by another person; or
• It the suit is barred by law; or
• If someone else has entered into an agreement with that person applying to back costs of the litigation.

The rejection order is appealable[17].

An inquiry to examine the applicant and his property may be ordered by the court or the court may adopt the inquiry made by the Chief Ministerial Officer[18].

If permission is granted to sue as an indigent person, the suit shall proceed in the ordinary manner, only the difference being the applicant is not required to pay the court fees.

If permission is rejected, the court shall grant time to the applicant to pay the fees[19] and such order shall be a bar to a subsequent similar application but may sue in an ordinary manner.

If the indigent person succeeds in the suit, the court may recover it from the party and if he fails in the suit, the court shall order the plaintiff to pay required fees and costs[20].

SUITS AGAINST A MINOR

Order 32 provides for the procedure of suits to which minors are parties, object being to protect the interests of minors.

Rule 3 provides that in a suit against a minor, the court shall appoint a guardian ad litem which shall continue in all the proceedings and also in an appeal or revision and execution of a decree till he is terminated as a guardian.

Any decree against a minor without guardian or next friend is null and void. Also ,it is not illegal or be cancelled only on the basis that such next friend or guardian has an interest in subject matter adverse to that of the minor. But if the minor is prejudiced by such reason then it is a valid ground for setting aside such decree[21].

Rule 4 provides that any person who has attained majority and is of sound mind can be appointed as a guardian or next friend provided his interest is not adverse to that of the minor. In absence of such a person, the court may appoint an officer of the court to be the guardian.

Rules 5-7 provides for the powers and duties of a guardian or next friend as:-

• He cannot receive any amount or movable property on behalf of minor by way of compromise, without the leave of the court nor can enter into any compromise on his behalf in the suit;
• Application for leave of the court should be accompanied by an affidavit and in case the minor is represented by a pleader, then with a certificate of the pleader that such compromise is beneficial to the minor.

Any settlement without the permission of the court is voidable against all parties. If the compromise is avoided by the minor then it ceases to be effective[22].

Rules 8-11 provides for the retirement, removal or death of the guardian or next friend. Before getting a fit person for substituting him and giving security,  the next friend or guardian cannot retire. The court may remove a next friend or guardian, if it is satisfied that:-

• His interest is not favorable to the interest of the minor; or
• He is related with the opposite party such that it is unlikely that the interest of the minor will be saved and safeguarded by him; or
• He doesn’t discharge his duty; or
• Ceases to stay in India during pendency of suit; or
• Any other justifiable cause.

On such retirement, removal or death, the proceedings in the suit shall be stayed until a next friend or guardian is appointed.

Rules 12-14 provides for what happens when the minor attains majority. On attaining majority, the minor plaintiff may adopt any of the following:-

• May proceed with the suit and then shall apply for an order discharging the next friend or guardian and for leave to proceed in his own name.
• May renounce the suit and apply for its dismissal. 
• May apply for dismissal of the suit on the ground of unreasonableness.
• In case he is a co-plaintiff , he may reject the suit and may apply to have his name removed as co-plaintiff.

SUITS AGAINST A DEAD PERSON

There are two different views in this regard. First view is that a suit against a person who is dead when the suit was instituted is non est and has no legal effect; second view is that such suit is not void ab initio and can be continued against legal representatives of the deceased defendant. Thus, a suit filed against a dead person by the plaintiff without the knowledge about the death of the defendant and takes prompt action as soon as he comes to know about it, then he cannot be deprived of his remedy against the legal representatives of the deceased defendant.

[1] Deva Ram v. Ishwar Chand, AIR 1996 SC    378. 

[2] AIR 1931 PC 229.

[3] AIR 2004 SC 1761.

[4] Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) ltd., (2013)1 SCC 625.

[5] Inacio Martins v. Narayan Hari Naik, (1993)3 SCC 123.

[6] Arjun Lal v. Mriganka Mohan, AIR 1977 SC 207.

[7] State of M.P. v. State of Maharashtra, AIR 1977 SC 1466.

[8] Sidramappa v. Raja Shetty, AIR 1970 SC 1059.

[9] Hare Krishna v. Umesh Chandra, AIR 1921 Pat 193(FB).

[10] The Code of Civil Procedure,1908,Or.1 R.1.

[11] The Code of Civil Procedure,1908,Or.1 R.3.

[12] Assan v. Pathumma, ILR(1899)22 Mad 494.

[13] Kalyan Singh v. Baldev Singh, AIR 1961 HP 2.

[14] The Code of Civil Procedure,1908,Or.4 R.2.

[15] The Code of Civil Procedure,1908,Or.33 R.3.

[16] The Code of Civil Procedure,1908,Or.33 R.5.

[17] The Code of Civil Procedure,1908,Or.43 R.1(na).

[18] The Code of Civil Procedure,1908,Or.33 R.1A.

[19] The Code of Civil Procedure,1908,Or.33 R.15A.

[20] The Code of Civil Procedure,1908,Or.33 Rr.11,11A.

[21] Ram Chandra v. Man Singh, AIR 1968 SC 954.

[22] Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790.

BY KU RICHA SINGH| LAW COLLEGE DEHRADUN, UTTRANCHAL UNIVERSITY

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Order 7 Rule 11 CPC-Rejection of Plaint

Table of Contents

Introduction

The Civil Procedure Code, 1908 is a crucial procedural law governing the enforcement of civil rights and liabilities specified in various substantive laws. One vital aspect of this procedural framework is the initiation of a lawsuit against a defendant in a court of law. According to C.P.C., Section 26 read with Order 4, a suit must be initiated by presenting a plaint. The presentation of the plaint is governed by Order VI and Order VII of C.P.C., with Order VII specifically addressing the formalities and particulars to be included in the plaint.

Among the provisions outlined in Order VII, Rule 11 specifies the grounds on which a court can reject a plaint. It is essential to distinguish between the rejection of a plaint and the return of a plaint (as per Order VII, Rule 10). When the court determines that it lacks the jurisdiction to try a particular matter, it returns the plaint to be presented before the appropriate court with the rightful jurisdiction. On the other hand, when an application is filed under Order VII, Rule 11, the court must assess the application to determine the admissibility of the plaint for institution.

In the case of Saleem Bhai v. State of Maharashtra , the court held that while deciding an application under Order VII, Rule 11, only the averments made in the plaint are relevant. The pleas put forward by the defendant in the written statement at that stage are entirely irrelevant. Therefore, any direction given by the trial court to file a written statement without first deciding on the application under Order VII, Rule 11 would be considered a procedural irregularity.

Today in this article we will explore Order 7 Rule 11 CPC-Rejection of Plaint

What is Order 7 Rule 11?

The Civil Procedure Code of 1908 encompasses provisions pertaining to various civil litigations. When initiating a civil suit in court, the Code mandates the court to ascertain whether the suit is maintainable or not. After such determination, the court can take one of the following actions:

• Accept the plaint,
• Reject the plaint, or
• Return the plaint to the plaintiff or the party filing the suit.

To fulfill this duty, Order 7 Rule 11 comes into play, which outlines the grounds (discussed below) on which a plaint may be rejected. Before delving into these grounds, it is crucial to recognize that the filing of a plaint to institute a suit is essential, and every court holds the responsibility to scrutinize the plaint and determine its admissibility.

When submitting an application under Order VII Rule 11 of the Code of Civil Procedure, the court is obligated to assess whether the present case falls within the specified six categories. If the suit does not fall under any of these prescribed categories, the rejection of the plaint cannot be justified ( V. Bragan Nayagi Vs. R.R. Jeyaprakasam, 2015(4) MLJ 538 ).

Beyond Order VII Rule 11: Dismissing Civil Suits under CPC

In legal proceedings, several provisions may lead to the dismissal of a plaint. However, one provision that frequently arises and requires careful consideration is the petition for rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code (CPC).

(a) The dismissal occurs as a result of the plaint’s rejection under Order VII Rule 11 of the code, based on the grounds specified in Sub-sections (i) to (v).

(b) Dismissal under Order IX Rule 2 or Rule 3 or Rule 5 or Rule 8 for non-service of summons, non-appearance, or failure to apply for fresh summons.

(c) Dismissal under Order XI Rule 21 for non-compliance with an order to answer interrogatories or for discovery or inspection of documents.

(d) Dismissal under Order XIV Rule 2(2) when issues of both law and fact arise in the same suit, and the court deems it appropriate to decide the issue of law first, which may lead to the dismissal of the suit.

(e) Dismissal under Order XV Rule 1 of the code when, during the first hearing, it becomes evident that the parties are not in disagreement on any question of law or fact.

(f) The dismissal takes place under Order XV Rule 4 of the code due to the party’s failure to present or produce the required evidence during the proceedings.

(g) Dismissal under Order XXIII Rule 1 and 3 of the code when a suit is withdrawn or settled out of court.

Among these provisions, petitions for rejection of the plaint under Order VII Rule 11 CPC are particularly common, warranting special attention from judges.

Order VII Rule 11 CPC empowers the court to reject a plaint under certain circumstances, ensuring that only valid and maintainable claims proceed to trial. The rule provides grounds for rejection, such as the absence of a cause of action, lack of jurisdiction, and non-compliance with necessary legal formalities. It is crucial for judges to meticulously assess these grounds to prevent frivolous claims from burdening the judicial system.

When considering a petition under Order VII Rule 11 CPC, judges must exercise due diligence in examining the facts and merits of the case. It is vital to strike a balance between swiftly disposing of baseless claims and safeguarding the legitimate rights of the parties involved. Properly handling such petitions can significantly reduce the workload on the courts and expedite the administration of justice.

Object of Order VII Rule 11 CPC

The primary intent behind implementing Order VII Rule 11 (a) is to prevent unnecessary prolongation of legal proceedings in a suit where either the cause of action is absent or the suit is time-barred under Rule 11 (d). The court’s objective is to curtail frivolous litigation and preserve valuable judicial time. As illustrated in the case of Dahiben Vs. Arvinbhai Kalyanji Bhansai (2020) SCC Online, 563 , the dismissal of such suits plays a vital role in terminating sham litigation and fostering a more streamlined and efficient judicial process.

The conferment of powers under this provision serves a crucial purpose – to safeguard the court’s valuable time from being squandered on meaningless and futile litigation. The essence of Order VII Rule 11 of the Code lies in its ability to filter out baseless lawsuits, preventing them from burdening the judicial system.

In this regard, Order X of the Code empowers the courts with a potent tool to conduct a thorough examination of parties involved, enabling them to determine if a suit is nothing more than an irresponsible abuse of the court’s process – a mere charade of litigation. The case of Azhar Hussain Vs. Rajiv Gandhi (1986 Supp. SCC 315) and Sopan Sukhdeo Sable Vs. Asstt. Charity Commr. (2004) 3 SCC 137) both underscore the significance of using these provisions judiciously to ensure a fair and efficient administration of justice.

Order 7 Rule 11: Meaning and Scope

The meaning and scope of Rule 11 of Order VII CPC have been expounded in various legal decisions. It has been deduced that a Plaint can be rejected under this rule if it fails to disclose the cause of action or if it is barred by law. Additionally, the provision aims to protect defendants from the burden of contesting a non-maintainable suit in lengthy and vexatious litigation. Moreover, the rule serves to discourage the abuse of the court’s process and the filing of frivolous lawsuits without proper authority. One such instance can be found in the case of Dr. L. Ramachandran vs. K. Ramesh (2015(4) LW. 585 (Mad) (DB), Para 26) . In essence, Order VII Rule 11 CPC acts as a procedural safeguard against vexatious and baseless litigation.

When applying the authority vested in it by this provision, the Court is tasked with evaluating whether the claims presented in the plaint contradict statutory laws or established judicial precedents. This assessment is crucial in determining whether the conditions for dismissing the plaint at the initial stage have been met, as illustrated in the case of Dahiben vs. Arvinbhai Kalyanji Bhansai (2020 SCC Online 563, Para 12.5) .

Order 7 Rule 11: Nature of Power

The recourse available under Order VII Rule 11 represents a distinct and unique remedy, allowing the Court to promptly dismiss a suit right from the outset. This process circumvents the need to go through the extensive formalities of recording evidence and conducting a full trial. Instead, if the Court determines that sufficient grounds exist, as outlined in this provision, it possesses the authority to terminate the action based on the evidence presented. This significant aspect of the rule was evident in the case of Dahiben vs. Arvinbhai Kalyanji Bhansai (2020 SCC Online 563, Para 11).

Rule 11 of Order VII establishes a separate and autonomous recourse for the defendant to contest the viability of the suit itself, regardless of their entitlement to challenge it on substantive grounds. This independent remedy allows the defendant to raise objections regarding the maintainability of the suit, as demonstrated in the case of Sopan Sukhdeo Sable vs. Asstt. Charity Commr., (2004) 3 SCC 137 . In essence, this provision empowers the defendant to address fundamental issues relating to the suit’s validity without delving into the merits of the case.

Court’s Role: Order 7 Rule 11 CPC

Having an activist judge presiding over cases can serve as a solution to counter irresponsible law suits. These judges would assertively prioritize examining the parties involved during the initial hearing to swiftly dismiss frivolous litigation. Additionally, the penal code can offer effective measures to address such individuals and must be enforced against them. In the case of T. Arivandandam vs. T.V. Satyapal and another (AIR 1977 SC 2421: (1978) 1 SCJ 197, Para 5) , the learned Judge experienced the truth behind George Bernard Shaw’s observation on Mahatma Gandhi’s assassination: “It is dangerous to be too good.” This highlights the potential risks and challenges faced by judges who genuinely strive to uphold justice and combat baseless legal actions.

The trial court must bear in mind that it should not merely follow a formal reading of the plaint but rather engage in a meaningful assessment. If it becomes evident that the plaint is vexatious and lacks merit, failing to disclose a clear right to sue, the court should utilize its authority under Order VII Rule 11 of the Code. It is crucial to ensure that the specific grounds mentioned in the rule are met before taking any action. Crafty drafting techniques that create the illusion of a cause of action should be promptly dealt with during the initial hearing by conducting a thorough examination of the party in accordance with Order X of the Code. The case of Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137 exemplifies the importance of such careful evaluation and prompt action to prevent the misuse of legal proceedings.

Suo Moto Application of Order 7 Rule 11: Possible?

Contrary to using discretionary language, the term ‘shall’ is employed in Rule 11, indicating a definite obligation on the part of the Court to fulfill its duties in rejecting the plaint if it is affected by any of the deficiencies outlined in the four clauses. The Court is empowered to take action even without the defendant’s involvement, clearly emphasizing the mandatory nature of the provision. The case of Sopan Sukhdeo Sable vs. Asstt. Charity Commr., (2004) 3 SCC 137 , exemplifies the significance of this aspect in ensuring the proper application of Rule 11 and the Court’s responsibility in handling such matters.

The authority to strike off the plaint is not contingent upon the defendant filing an application for rejection under Order VII Rule 11 CPC. As established in the case of Mani vs. P. Ramakrishnan (2018(4) MLJ 182 (Mad)) , the Court retains the power to take such action even in the absence of a formal application from the defendant. This underscores the Court’s autonomy to address the suit’s viability independently, ensuring a fair and efficient judicial process.

Relevant Material to be Considered for Plaint Rejection Under O7 R 11

During this phase, it is crucial to note that any defenses raised by the defendant in the written statement or in an application for rejection of the plaint based on its merits become immaterial and should not be taken into account. This key principle was underscored in the case of Dahiben vs. Arvinbhai Kalyanji Bhansai (2020 SCC Online 563, Para 12.5) . The focus should remain solely on the content of the plaint while evaluating the application under Order VII, Rule 2 of the Code of Civil Procedure.

In the course of deciding the application under Order VII, Rule 11 of the Code of Civil Procedure, the Court is indeed entitled to examine the documents referenced in the plaint. This clarification was provided in the case of Sanjay Kaushish vs. D. C Kaushiah (AIR 1992 Del 118, Para 63) . Hence, the Court is authorized to consider the documents mentioned in the plaint to make a well-informed judgment on the application.

When this court is tasked with exercising its jurisdiction to reject the plaint under Order VII Rule 11 of the CPC, only the statements made in the plaint and the documents filed alongside it, which are an integral part of the plaint, shall be considered. The court is precluded from taking into account the defendant’s defense, pleas, or materials submitted for the purpose of rejecting the plaint. This principle was elucidated in the case of Gunaseelan vs. Valarmathi and 2 Ors (2009(5) CTC 693, Para 13) . Thus, the assessment of the plaint’s viability must rely solely on its own contents and the documents appended to it, without any reference to the defendant’s submissions or defenses.

Also Read: Res Judicata: Under Civil Procedure Code

Grounds for the rejection of plaint under o 7 r11, cause of action not disclosed in plaint – rule 11(a):.

Cause of action refers to the right to initiate legal action. It encompasses the essential facts that a plaintiff must assert and prove to support their claim. Although not specifically defined by any statute, the judicial interpretation clarifies that cause of action includes all the facts necessary for the plaintiff to establish their entitlement to the Court’s judgment. Conversely, any fact that, if not proven, would entitle the defendant to an immediate judgment, also forms part of the cause of action. The significance of cause of action cannot be overstated.

In every legal action, a valid cause of action must exist; otherwise, the plaint or writ petition, depending on the case, may be promptly dismissed. This vital principle was exemplified in the case of Usum Ingots & Alloys Ltd. vs. Union of India and another (2004) 6 Supreme Court Cases, 254, Para 6 . Therefore, a clear cause of action is fundamental for the validity and progression of any legal claim or petition.

A cause of action constitutes a collection of facts and implies the right to initiate legal action. It is essential to distinguish between the non-disclosure of a cause of action and a defective cause of action. It is well understood in legal terms that an application under Order VII Rule 11 CPC is applicable when there is a non-disclosure of a cause of action. However, it does not extend to cases involving a defective cause of action. This distinction was clarified in the case of Yrooj Ahamed Lords Enterprises vs. Preethi Kitchen appliances Pvt. Ltd, 2013(6) CTC 247, Para 5(a)(ii).

In summary, the court must recognize the difference between the absence of a cause of action due to non-disclosure and a cause of action that exists but is defective. The former falls under the purview of Order VII Rule 11 CPC, while the latter requires different considerations and remedies.

Suit is undervalued – Rule 11(b):

The matter of Court Fee is essentially a concern that pertains to the litigant and the Revenue/Government. It involves the obligation of the litigant to pay the appropriate Court Fee. Notably, the Defendants hold the right to raise objections regarding the payment of Court Fee by the Plaintiffs either through their Written Statement or by submitting an application before evidence is presented in the main suit. This allows for a fair and transparent resolution of any issues related to Court Fee, ensuring that the correct fees are duly paid and the legal process proceeds smoothly.

It should be emphasized that under Order VII Rule 10 of the Code of Civil Procedure, a plaint can only be returned to the Plaintiff if the Court where the plaint is filed lacks the necessary territorial or pecuniary jurisdiction. If a Court of Law does not have the appropriate jurisdiction, it must return the plaint, irrespective of whether the claim is improperly valued or undervalued. In such cases, the Court does not have the authority to rectify the valuation concerning the requirement of Additional Court Fee or dismiss the suit for default under Order VII Rule 11 of the CPC. The focus remains on the Court’s jurisdictional aspect, and the appropriate actions are taken accordingly to ensure a fair and lawful resolution of the matter.

Order VII Rule 11 (d):

As per Order VII Rule 11(d) of the Code, a plaint can be rejected if the suit is barred by the Law of Limitation.

However, it is important to note that if a suit is initially barred by the Law of Limitation, the plaint of such a suit can be amended during the hearing. The Court has the responsibility to ascertain whether there is non-disclosure of the cause of action or if the plaint is barred under any law, including the limitation laws.

In cases where the plaintiff can demonstrate that the suit was filed within the prescribed period of limitation, the provisions of this order will not be applicable. Determining the period of limitation involves considering both legal principles and factual elements.

For instance, if a suit is initiated against the government without serving the required notice (which is usually required to be served 2 months before filing the suit) under Section 80 of the Code of Civil Procedure, the plaint for such a suit will be rejected. Section 80 of the Code necessitates serving a notice to the government or the public officer before instituting the suit. This ensures that proper procedures are followed when bringing legal action against the government or public officials.

Order VII Rule 11 (e):

According to Order VII Rule 11(e) of the Code, it is mandatory for the plaintiff to file a duplicate copy of the plaint along with the original one when initiating a suit. Failure to comply with this requirement leads to the rejection of the plaint. This particular procedure is further detailed in Order 4 Rule 1 of the CPC.

In cases where the plaintiff fails to follow the prescribed procedure and neglects to submit the duplicate copy of the plaint, the court holds the discretionary power to reject the plaint. The court’s discretion comes into play when the necessary filing procedure is not adhered to, ensuring the proper administration of justice and adherence to the procedural rules. Hence, the significance of complying with the prescribed filing requirements cannot be overstated in order to avoid the rejection of the plaint.

It is evident that the mentioned clause is of a procedural nature, and it does not mandate an automatic rejection of the plaint at the initial stage. When there is a defect as per Rule 11(e) or non-compliance as stated in Rule 11(f), the court should generally provide an opportunity for rectifying these issues. Only if the defects are not rectified within the given opportunity, the court may then exercise its discretion to reject the plaint. This approach ensures fairness and allows parties to correct any deficiencies before resorting to outright rejection. The case of Salem advocate bar Association Tamilnadu vs. Union of India (AIR 2003 SC 189: 2003(1) SCC 49) provides insight into this principle, highlighting the importance of allowing parties to rectify errors and defects before taking any drastic measures such as rejection of the plaint.

Other grounds for Rejection of Plaint

Rule 11’s provisions are not exhaustive, as the court possesses inherent powers to prevent vexatious litigations from burdening its time. In certain situations, both the High Court and the court where the suit is filed can issue directions not to entertain such suits. This discretionary power allows the courts to proactively address and discourage frivolous and time-consuming lawsuits. The case of M. Gurusamy and Anr. vs. G. Vijaya and Ors. (2008(1) MLJ 716, Para 5) illustrates the significance of these inherent powers in maintaining judicial efficiency and ensuring that the court’s resources are used judiciously.

Mis joinder – non-joinder of parties and misjoinder of cause of action :

Order VII Rule 11(d) of the Code cannot be applied to reject the plaint when a suit exhibits the defect of either misjoinder of parties or misjoinder of causes of action, or both, as this defect does not render the suit barred by any law. The case of Prem Lala Nahata & Anr vs Chandi Prasad Sikaria (2007 (3) CTC 101(SC): 2007(2) MLJ 1177, Para 5) clarifies that the rejection under Rule 11(d) should pertain to cases where the suit is barred by a specific law. Thus, the defect related to misjoinder of parties or causes of action does not fall under the ambit of Rule 11(d) for the rejection of the plaint.

As per Order 7 Rule 11(d) of the CPC, the non-joinder of necessary parties does not fall within the scope of being “barred by law.” This means that the rejection of a plaint under Rule 11(d) does not apply to cases where necessary parties have not been included in the suit. The case of P. Govindasamy vs. Manickam (2015(6) CTC 651S) emphasizes that the provision is not applicable to situations involving non-joinder of necessary parties. Therefore, the rejection of a plaint under Rule 11(d) should be limited to cases that are explicitly barred by a particular law and not extended to instances of non-joinder of necessary parties.

Non filing of documents:

The non-filing of documents on which the cause of action relies and the absence of court records may indeed pose challenges to the plaintiff’s case, benefiting the defendant. However, these factors alone do not justify the outright rejection of the plaint. The case of Metson Education and Development Association(P)Ltd vs. The Church of South India Trust Association (2008(1) CTC 521) emphasizes that such omissions or missing records should not be grounds for rejecting the plaint. Instead, the court should address these deficiencies during the course of the proceedings and provide the plaintiff with an opportunity to rectify or produce the necessary documents. The objective is to ensure a fair and just resolution of the case by allowing both parties to present their evidence and arguments properly.

Defective presentation of plaint:

It is firmly established that a defective presentation of a plaint alone cannot lead to the rejection of the plaint. The grounds for rejecting a plaint are specifically outlined in Order 7 Rule 11 of the CPC. A defect that is of a curable nature does not fall within the purview of Order 7 Rule 11. This principle was upheld in the case of K. Santhanam vs. S. Kavitha through her sub-power agent K. Seerappan ((2011)3 MLJ 34, Para 17). Therefore, the court must consider whether the defects are curable or fall under the grounds specified in Order 7 Rule 11 before deciding on the rejection of a plaint.

The Code of Civil Procedure serves as a comprehensive statute governing the entire procedure followed by civil courts across India. The initial step in filing a suit is drafting the plaint with meticulous attention, ensuring it includes all particulars as specified in Order VII of the Code.

The rejection of a plaint under Order 7 Rule 11 constitutes a valuable remedy, saving the judiciary’s valuable time and protecting innocent respondents from protracted court cases and associated legal struggles.

Regarding Order 7 Rule 11’s status as a ‘deemed decree,’ it should be noted that the legislation explicitly permits the filing of a fresh plaint even after rejection of the previous one. This provision offers adequate protection to innocent plaintiffs, ensuring they are not prejudiced. Consequently, a new suit on the same subject matter can be brought by the plaintiff, allowing for another opportunity to address the issue.

In conclusion, when a plaint is found defective on any of the grounds mentioned in Order 7 Rule 11, the court holds the authority to dismiss it by issuing an order stating the reasons for rejection. This provision contributes to a more efficient judicial process and safeguards the rights of all parties involved.

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If a plaint is returned under O7-R10 & 10A of CPC, for presinting before a proper court, whether the suit shall proceed de novo or will it continue from the stage at returning of the plaint?

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If a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time Time Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In P hysics , time and Space never exist actually-“quantum entanglement”) of returning of the plaint.

It is no more res­integra that in a dispute between parties where two or more courts may have jurisdiction Jurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction : the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction:  Jurisdiction of the first court to hear a case. , it is always open for them by agreement Contract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act . to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement extracted above leaves us in no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter. This Court considering a similar clause restricting jurisdiction by consent in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. [2013 (9) SCC 32], observed as follows:

“32. ….It is a fact that whilst providing for jurisdiction clause in the agreement the words like “alone”, “only”, “exclusive” or “exclusive jurisdiction” have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties—by having Clause 18 in the agreement —is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract Contract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act . specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.”

This was reiterated in State of West Bengal v. Associated Contractors [2015 (1) SCC 32], holding that presentation of the plaint in a court contrary to the exclusion clause could not be said to be proper presentation before the court having jurisdiction in the matter.

That brings us to the order of the reference to be answered by us. In Joginder Tuli [supra] the original court lost jurisdiction by reason of the amendment of the plaint. The Trial Court directed it to be returned for presentation before the District Court. Supreme Court observed as follows:

“5. … Normally, when the plaint is directed to be returned for presentation to the proper court perhaps it has to start from the beginning but in this case, since the evidence Evidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from that stage at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.”

The observations are very clear that the suit has to proceed afresh before the proper court.

In case of Modern Construction referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., Amar Chand Inani v. The Union of India India Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more , Hanamanthappa v. Chandrashekharappa [1997 (9) SCC 688], Harshad Chimanlal Modi (II) [supra] and after also noticing Joginder Tuli [supra], arrived at the conclusion as follows:

“17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee Court fee It has to be paid on the plaint as framed and not as it ought to have been framed. Law of Suit Valuation in India paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”

Order VII Rule 10-A, as the notes on clauses, indicates was inserted by the Code of Civil Procedure (Amendment) Act, 1976 (with effect from 01.02.1977) for the reason:

“New Rule 10-A is being inserted to obviate the necessity of serving summonses on the defendants where the return of plaint is made after the appearance of the defendant in the suit.”

Also, under sub-rule (3) all that the Court returning the plaint can do, notwithstanding that it has no jurisdiction to try the suit is:

“10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.

xxx xxx xxx

(3) Where an application is made by the plaintiff under subrule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit, —

(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such date for appearance.”

The language of Order VII Rule 10-A is in marked contrast to the language of Section 24(2) and Section 25(3) of the Code of Civil Procedure which read as under:

“24. General power of transfer and withdrawal.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

Power of Supreme Court to transfer suits, etc.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.”

The statutory scheme now becomes clear. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.

Power of Superior Court

In Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer [AIR 1965 SC 195], this court observed as follows:

“7. …The question as to whether the jurisdiction of this Court under Article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case.”

In Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396] it was observed as follows :­

“47….It is true that the jurisdiction under Article 136 of the Constitution is a discretionary jurisdiction and notwithstanding that a judgment Judgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution ) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges ( State Bank of India and Another Vs Ajay Kumar Sood SC 2022) may not be wholly correct or in accordance with law, this Court is not bound to interfere in exercise of its discretionary jurisdiction….”

In ONGC Ltd. v. Sendhabhai Vastram Patel [2005 (6) SCC 454], it was observed:

“23. It is now well settled that the High Courts and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior courts in India may not strike down even a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the appellant in a given case although the Court may find the same to be justified in law.”

The nature of jurisdiction under Article 136 of the Constitution was again considered in Shin­Etsu Chemical Co. Ltd. (2) v. Vindhya Telelinks Ltd. [2009 (14) SCC 16]. In Karam Kapahi v. Lal Chand Public Charitable Trust [2010 (4) SCC 753], it was observed as follows:

“65. The jurisdiction of this Court under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary in nature. It is unfettered and not confined within definite bounds. Discretion to be exercised here is subject to only one limitation and that is the wisdom and sense of justice of the Judges (see Kunhayammed v. State of Kerala [2000 (6) SCC 359]. This jurisdiction has to be exercised only in suitable cases and very sparingly as opined by the Constitution Bench of this Court in Pritam Singh v. State [AIR 1950 SC 169]…”

R.K. Roja v. U.S. Rayudu [JT 2016 (6) SC 440] (Para 8)State of West Bengal v. Associated Contractors [2015 (1) SCC 32] (Para 14)

Oil and Natural Gas Corporation Corporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. Ltd. v. Modern Construction & Co. [2014 (1) SCC 648] (Para 2)

Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. [JT 2013 (10) SC 35] (Para 13)

Karam Kapahi v. Lal Chand Public Charitable Trust [2010 (4) SCC 753] (Para 26)

Shin­Etsu Chemical Co. Ltd. (2) v. Vindhya Telelinks Ltd. [JT 2009 (4) SC 537] (Para 26)

Hasham Abbas Sayyad v. Usman Abbas Sayyad [JT 2007 (1) SC 616] (Para 6)

Harshad Chimanlal Modi (II) v. DLF Universal Ltd. [JT 2005 (10) SC 567] (Para 6)

ONGC Ltd. v. Sendhabhai Vastram Patel [JT 2005 (7) SC 465] (Para 25)

Balraj Taneja v. Sunil Madan [JT 1999 (6) SC 473] (Para 24)

Joginder Tuli v. S.L. Bhatia [JT 1996 (11) SC 19] (Para 2)

Hanamanthappa v. Chandrashekharappa [JT 1997 (2) SC 528] (Para 16)

Amar Chand Inani v. The Union of India [1973 (1) SCC 115] (Para 6)

Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer [AIR 1965 SC 195] (Para 23)

Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. [AIR 1929 PC 103] (Para 6)

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INSTITUTION OF A SUIT- UNDERSTANDING THE PROCEDURES ESTABLISHED UNDER THE CODE OF CIVIL PROCEDURE 1908

Published by admin on june 18, 2023 june 18, 2023.

This article is written by Vidhish Muthanna C.A of Symbiosis Law School, Pune.

The author has provided a clear introduction to the concept of an “Institution of suit” in the Indian legal system, which refers to the initiation of civil legal action under the Code of Civil Procedure. The article further explains that a suit involves a formal legal proceeding in a civil court to seek a remedy for a civil wrong or dispute. The author has also emphasized the essentials for a suit, including the requirement for opposing parties, a subject matter, a cause of action, and the relief claimed to make a plaint legally valid. The process of instituting a suit under the CPC has also been discussed, covering the aspects of filing a plaint, registering the suit, determining the place of suing, provisions for amendment of pleadings, and return and rejection of plaints. These procedures ensure the proper initiation and administration of a civil lawsuit under the CPC 1908.

INTRODUCTION

In the context of the Indian legal system, the term “Suit” though not defined anywhere, refers to a civil legal action initiated under the Code of Civil Procedure (CPC). The Black Law Dictionary defines a suit as a proceeding initiated by one party against another in a court of law. The CPC is a comprehensive legislation governing the procedure for resolving civil disputes in India. A suit under the CPC involves a formal legal proceeding in a civil court to seek a remedy or relief for a civil wrong or dispute. It’s important to note that the specific procedures and requirements for filing and conducting a suit may vary depending on the nature of the dispute, the court involved, and other factors.

The institution of a suit refers to the formal process of initiating a legal action or lawsuit in a court of law. When a person or entity decides to pursue a legal claim against another party, they file a document known as a complaint, petition, or lawsuit, depending on the jurisdiction and type of case. One can institute a suit in a court of law by initiating a plaint [1] , which is a statement that is reduced to writing on the cause of action in which relief is claimed [2] . The provisions regarding the institution of a suit are available under Section 26 and Orders I, II, IV, VI, and VII of the Civil Procedure Code.

ESSENTIALS FOR SUIT

Suits may be instituted in accordance with Section 26 and Order IV of the Civil Procedure Code. Every lawsuit must be started by presenting a duplicate plaint to the court or the official designated in this regard. An affidavit must also be given to substantiate the facts presented to the court. This part should be read with Orders IV, VI, and VII of the first schedule. Section 26 of the CPC and Rule 1 of Order IV must be read together to extend the legislation specified in that section [3] .

According to this regulation, a lawsuit can only be considered properly launched if it is submitted as a plaint and is submitted to the court or an appropriate official designated in this regard. Additionally, such a plaint must adhere to the Order VI & VII regulations.

There are namely 4 essentials that have been laid out in the case of Krishnappa v Shivappa, [4] wherein the court held that, for a suit to exist, there is a need for the following 4 essentials to be present which are as follows:

• Opposing Parties (Order I)

For a suit to be valid, there must be two separate parties, i.e., a plaintiff and a defendant. Any number of plaintiffs and defendants can exist in a suit, and there is no bar to the maximum number of parties to a suit. Under CPC, there is recognition of two types of parties, namely a necessary party and a property party [5] . Necessary parties are those whose presence is vital and without such parties, the suit cannot be proceeded, and the court can pass no effective order. While in the case of a proper party, an order can be passed even in the absence of the party, but their presence is necessary for the final order and decision to be passed.

•  Subject Matter

The subject matter refers to the different set of facts that a plaintiff has to prove in order for him to claim the relief sought by him. Under the Code of Civil Procedure (CPC) in India, the term “subject matter” refers to the nature or type of dispute or claim that can be brought before a civil court. The CPC provides guidelines regarding the jurisdiction of various courts based on the subject matter of the dispute. The subject matter determines which court can hear and adjudicate the case [6] . The CPC recognizes different subject matters for civil suits, including Money, Property, Matrimonial, and family, Suits for Tort, Suits for Specific performance, Injunction, Testamentary and succession, and suits for appeals and revisions. These are just a few examples of the subject matters covered under the CPC. The specific subject matter and the corresponding court that has jurisdiction over a particular dispute may vary depending on the nature and value of the claim, the geographic location, and the relevant laws and regulations.

•  Cause of Action (Order II, Rule 3,6, &7)

For the plaintiff to claim his relief, he has to prove in the court all facts and circumstances stated in the plaint to be true and serves as a foundation for the suit to stand valid. It should consist of all facts wherein the rights of the plaintiff are infringed against which he seeks redressal which becomes the antecedent for filing any suit.

Order II, Rules 3, 6, and 7 of the Code of Civil Procedure (CPC) in India relate to the concept of “cause of action” in civil suits. These rules establish guidelines regarding the joinder and splitting of causes of action in a single suit.

The joining of causes of action is covered under Order II, Rule 3. According to this, a plaintiff may combine all claims that result from a single act, transaction, or series of acts or transactions into a single lawsuit as long as those claims are related to the same issue of law or fact [7] . In other words, a plaintiff may combine all of their legal claims against a defendant that are connected by a common set of facts or circumstances into a single lawsuit.

The penalties for failing to bring a lawsuit as part of a claim or cause of action are covered under Order II, Rule 6. It stipulates that a plaintiff cannot file a second lawsuit for any aspect of their claim or cause of action that they purposefully or unintentionally left out of a lawsuit. This rule discourages the division of causes of action and advances the final settlement of disputes by forcing the plaintiff to bring their complete claim before the court.

An exception to Rule 6 is provided by Order II, Rule 7, which enables the plaintiff to file a new lawsuit for a portion of the claim or cause of action that was not included in the initial lawsuit. However, the missing component of the claim must contain a separate cause of action that the plaintiff needed access to and knowledge of when the original lawsuit was filed for this exemption to be applicable.

Therefore, as a result of the same act, transaction, or series of acts or transactions, Order II, Rule 3 permits the joining of causes of action in a single lawsuit. Order II, Rule 6 forbids the plaintiff from launching a separate lawsuit for a claim or cause of action that was left out of the initial lawsuit [8] . An exception to Rule 6 is provided by Order II, Rule 7, which enables the plaintiff to file a second lawsuit for a separate cause of action that was not recognized or accessible at the time the first lawsuit was filed.

•  Relief Claimed

Relief is a legal remedy for the injustice that the plaintiff has suffered. A court will only grant a remedy if the parties to the litigation explicitly demand it. There are two types of reliefs granted by the Indian courts, namely: Specific and Alternative reliefs.

INSTITUTION OF A SUIT UNDER CPC, 1908

A lawsuit goes through several phases, including serving of summons, written declarations, the first hearing & issue-setting, the presentation of evidence and the final hearing, arguments, judgment, and the creation and execution of decrees. The institution of a suit consists of the following procedures to be followed in accordance with the laws.

•  Filing of a Plaint

Significantly, CPC 1908 does not define the term “plaint.” The dictionary defines “plaint” as a written statement of grievance submitted to a court of law seeking redress of the offense. Order VII comprises several regulations and deals with the format for a written plaint.  

According to Rule 1, a plaint should contain the following details:

• Name of the Court where the suit is brought to,
• Name, residence and description of the plaintiff,
• Name, residence and description of the defendant (so far as to what can be ascertained),
• If the plaintiff or defendant is a Minor or of unsound mind, then the statements to that effect should be provided along with the plaint
• Facts and circumstances constituting the cause of action for the suit to arose,
• Facts showing the jurisdiction of the court
• Reliefs claimed/sought by the plaintiff
• Claims set off or relinquished by the plaintiff should be made available to the court

According to Order VI Rule I of the CPC, 1908, pleadings are “a plaint or a written declaration.” The filing of a plaint is the initial stage of a lawsuit. After engaging in legal representation, the plaintiff files a document known as a plaint containing numerous facts and circumstances about their complaint. The complaint may be made orally or through a designated pleader. It has to be delivered in duplicate. Here, one must adhere to the general standards of pleading, which call for pleading relevant facts rather than those with evidential value. The date when lawsuits were instituted was when the plaint was brought before the office. The parties must sign each pleading [Order VI Rule 14], and an affidavit must accompany the plaint [Order VI Rule 15]. Orders VI & VII must be followed since they will not be considered to have been lawfully implemented if the regulations outlined in them are not followed. 

According to P.C Mogha [9] , Pleading has been defined as written declarations prepared and submitted by each party to express their claims at trial and provide any other information the other party needs to prepare their defence. It generally entails ways to focus the disagreement on a single subject and cut down on costs and delays, particularly regarding testimony from both sides. 

The Supreme Court of India has also laid down the basic purpose of a pleading to be as follows:

• To give exact intimation of case to other.
• To enable the court for determination of what is the real issue between the parties.
• It is to prevent deviation from the real cause of litigation
•  Registration of Suit

According to Rule 2 of Order 4, Court must persuade details of each lawsuit to be recorded in a book called Register of civil suits. Each year, these entries will be numbered in the order that the complaints are admitted, but only after the payment of the court fee has been made correctly in the court having pecuniary jurisdiction.

It is important to note that, the rule of Res Sub Judice and Res Judicata should not apply to the suit being instituted [10] . Res Sub Judice refers to the pending matter before a competent court for disposal, and Res Judicata refers to matters already decided by a court that involve the same parties and subject matter of dispute.  This is done to eliminate the chances of a multiplicity of suits and to have a unified justice system for all.

• Place of Suing

The venue of a lawsuit is crucial since it directly affects the court’s ability to provide a ruling. Choosing a court relies on the information in the complaint that is being filed. It alludes to the issue of jurisdiction.

• Pecuniary Jurisdiction

Pecuniary jurisdiction under the Code of Civil Procedure (CPC) of 1908 refers to the monetary limits within which a particular court has the authority to hear and decide civil cases. Each court is assigned a specific pecuniary jurisdiction based on the value or amount of the claim involved in the suit. It determines the appropriate court for filing a case, ensuring that lower courts handle matters of lower financial significance, while higher courts adjudicate higher-value cases. The pecuniary jurisdiction of a court is crucial in determining the forum for a civil suit, ensuring efficient resolution of disputes and access to justice at the appropriate level.

In the case of Tara Devi v Shree Rhakur Radhakrishna Maharaj [11] , the court held that putting a value on relief by ignoring an objective valuation criterion may be blatantly irrational and unfair, and the court may be justified in getting involved. Each court’s financial jurisdiction varies depending on one state to another. 

• Territorial Jurisdiction

Territorial jurisdiction under the Code of Civil Procedure (CPC) of 1908 refers to the geographical boundaries within which a court has the authority to entertain and adjudicate civil cases. The principle of territorial jurisdiction ensures that a suit is filed in a court that has a legitimate connection to the dispute or the parties involved. Territorial jurisdiction is determined based on factors such as the location of the defendant, the place where the cause of action arises, or where the property in dispute is situated. Generally, a court within whose local limits the defendant resides or carries on business, or where the cause of action wholly or partially arises, has territorial jurisdiction over the matter. There are namely 4 types of territorial jurisdictions available under the provisions of Civil Procedure Code 1908. 

These are as follows:

• Suits with respect to Immovable Property
• Suits with respect to Movable Property
• Suits with respect to compensations for losses suffered
• Other suits

In the case of Hakam Singh v Gammon India Ltd [12] , it dealt with the dispute where two or more courts have jurisdiction to entertain the suit. The court upon hearing the case came to the conclusion that the Bombay court would have sole authority to try the matter.

•  Amendment of Pleadings

Under Rule 17, Order VI of Civil Procedure Code 1908, the court may, during the proceeding or at any time, may allow the parties involved in the suit to alter, amend or bring changes in its pleadings in a manner that is just and proper and in the interest of serving justice [13] . Such amendments can only be made if the court finds it necessary to determine the question in controversy. In the case of Rameshkumar Agarwal v Rajmala Exports Pvt Ltd [14] , the Supreme Court of India held that Courts cannot refuse to request made for amendments that are bona fide, necessary, and honest. It also held that the objective behind this is to allow both parties involved in a suit to be able to amend their pleadings, thus avoiding the plethora of lawsuits.

• Return of Plaint

Order VII Rule 10 Sub-Rule 1 states that the plaint may be returned at any point throughout the litigation. If the court determines at any point that it lacks jurisdiction, it must send the complaint back to the appropriate court where it should have been filed. This complaint may be returned as long as the lack of jurisdiction is mentioned in the complaint. Nevertheless, if the court examines the plaint, parties and the evidences presented and comes to a conclusion, then the suit may be dismissed. This power can only be exercised by an appellate or Revisional Court.

While returning a plaint, the judge has to perform certain duties which is namely to provide endorsement over the request made, following which it has to provide a brief statement of reasoning as to why the court has decided to return the plaint. 

• Rejection of Plaint

A plaint can be rejected on many grounds by a court of law. But it cannot be rejected only in part. It is also important to note that there need not be any application made for the rejection of a suit as the court may take Suo motu actions. In the case of Ram Prakash v Rajeev Kumar Gupta [15] , the court can reject a plaint at any time during or before a judgement is produced by the court. The court also put forth a expansion to the term “at any stage of a suit” to include

• Before the registration of the plaint
• After the issuing of summons to the defendants
• Any time before the trial is concluded.

The institution of a suit under the Code of Civil Procedure of 1908 involves the formal initiation of a civil legal action. The process requires adherence to the provisions and procedures outlined in the CPC. The key aspects of instituting a suit include identifying the appropriate court based on the subject matter, determining the jurisdiction and venue, and complying with the rules regarding the cause of action, reliefs claimed, pecuniary jurisdiction, and territorial jurisdiction. The plaintiff files a written statement called a plaint, stating the facts, grounds, and relief sought. The defendant is served with summons and has the opportunity to file a written statement in response. The suit progresses through various stages, including pleadings, discovery, evidence, and trial, ultimately leading to a judgment pronounced by the competent court. The CPC provides a framework to ensure fair and efficient resolution of civil disputes, allowing parties to seek remedies, enforce rights, and obtain justice through a legally recognized process. It is important to consult with legal professionals for specific guidance and to navigate the intricacies of the CPC effectively.

• Hakam Singh v Gammon India Ltd., 1971 SCR (3) 314
• Hansraj Gupta v Official Liquidators of Dehradun- Mussoorie Electric Tramways Co. Ltd., AIR 1933 PC 6
• Krishnappa v Shivappa ILR., (1907) 31 Bom 393
• Life Insurance Corporation of India v Sanjeev Builders Pvt. Ltd & Anr.,
• Pandurang Ramchandra v Shantibhai Ramchandra., AIR 1989 SC 2240
• Rameshkumar Agarwal v Rajmala Exports Pvt Ltd., AIR 1982 SC 24
• Ram Prakash v Rajeev Kumar Gupta., Appeal (civil) 4626 of 2007
• Tara Devi v Shree Rhakur Radhakrishna Maharaj., AIR (1987) SC 2085
• C.K Takwani, Civil Procedure with Limitation Act 1963, 163 (EBC 8 th ed., 2020) 
• Sir Dinshaw Fardunji Mulla, ‘The Key to Indian Practise (A summary of The Code of Civil Procedure)’, (LexisNexis, 11 th ed., 2015)
• S.N Dhingra & G C Mogha, ‘Law of Pleadings in India with Precedents’, (Eastern Law House, 18 th ed., 2022)

Other Sources

• Aniket Mishra, “CPC- Suit: Meaning| Essentials| Institution of a Suit, North East Law Journal, retrieved from: https://www.northeastlawjournal.com/post/cpc-suit-meaning-essentials-institution-of-a-suit  
• Lexpeeps, “Institution of a Suit under the Civil Procedure Code, 1908: The First Stage of a Civil Proceeding” retrieved from: https://lexpeeps.in/institution-of-a-suit-under-the-civil-procedure-code-1908-the-first-stage-of-a-civil-proceeding/
• Smt. R. Shanthi Sree, Res Sub Judice & Res Judicata , pp-1-12 retrieved from: https://districts.ecourts.gov.in/sites/default/files/3rdworkshoppdmcourt.pdf    

[1] Pandurang Ramchandra v Shantibhai Ramchandra., AIR 1989 SC 2240

[2] Hansraj Gupta v Official Liquidators of Dehradun- Mussoorie Electric Tramways Co. Ltd., AIR 1933 PC 6

[3] C.K Takwani, Civil Procedure with Limitation Act 1963, 163 (EBC 8 th ed., 2020) 

[4] Krishnappa v Shivappa ILR., (1907) 31 Bom 393

[5] Ibid, at 165.

[6] Aniket Mishra, “CPC- Suit: Meaning| Essentials| Institution of a Suit, North East Law Journal, retrieved from: https://www.northeastlawjournal.com/post/cpc-suit-meaning-essentials-institution-of-a-suit  

[7] Lexpeeps, “Institution of a Suit under the Civil Procedure Code, 1908: The First Stage of a Civil Proceeding” retrieved from: https://lexpeeps.in/institution-of-a-suit-under-the-civil-procedure-code-1908-the-first-stage-of-a-civil-proceeding/

[8] Sir Dinshaw Fardunji Mulla, ‘The Key to Indian Practise (A summary of The Code of Civil Procedure)’, (LexisNexis, 11 th ed., 2015)

[9] S.N Dhingra & G C Mogha, ‘Law of Pleadings in India with Precedents’, (Eastern Law House, 18 th ed., 2022)

[10] Smt. R. Shanthi Sree, Res Sub Judice & Res Judicata , pp-1-12 retrieved from: https://districts.ecourts.gov.in/sites/default/files/3rdworkshoppdmcourt.pdf    

[11] Tara Devi v Shree Rhakur Radhakrishna Maharaj., AIR (1987) SC 2085

[12] Hakam Singh v Gammon India Ltd., 1971 SCR (3) 314

[13] Life Insurance Corporation of India v Sanjeev Builders Pvt. Ltd & Anr.,

[14] Rameshkumar Agarwal v Rajmala Exports Pvt Ltd., AIR 1982 SC 24

[15] Ram Prakash v Rajeev Kumar Gupta., Appeal (civil) 4626 of 2007

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Return of Plaint by the Court (Order VII Rules 10, 10A and 10B)

• Post author By Hemant More
• Post date June 30, 2022
• 1 Comment on Return of Plaint by the Court (Order VII Rules 10, 10A and 10B)

Indian Legal System > Civil Laws > The Code of Civil Procedure > Return of Plaint by the Court (Order VII Rules 10, 10A and 10B)

The term Plaint has not been defined in the Code. However, it can be defined as a statement of claim by presentation of which the suit is instituted. It is pleading of the plaintiff. Thus, it is a legal document which contains the written statement of the plaintiff’s claim. It is the first step towards the initiation of a suit. Through the help of plaint, the plaintiff narrates or describes the cause of action and related information which is considered as essential from the viewpoint of the suit.  Order VII Rules 10, 10A, and 10B of the Civil Procedure Code, deals with the return of plaint. The CPC empowers the civil courts to return the plaint to the plaintiff if the court believes that the plaint is not properly filed or any suit presented before it has no jurisdiction to try it.

CPC provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Once the Court has held that it has no pecuniary jurisdiction, it should not have dismissed the suit but is bound to return it for presentation to proper Court. The returned plaint will start afresh when it is presented to the proper court. The freshly filed plaint in the proper court is not the continuation of the plaint presented in the improper court. The order of the court relating to return of the plaint is appealable.

Return is different from rejection and it needs to be noted. Return of plaint does not connote that the plaint had mistaken or that the rules for drafting the plaint were not conformed to. It simply means that the court is not empowered to try the suit for which the plaint is filed. On the contrary, the plaint is rejected if the essential requirements of a plaint are not provided in the plaint or if the certain elements are vague and ambiguous.

Grounds for Return of Plaint:

The court shall return a plaint on the following grounds:

• Court has no jurisdiction, or
• There is a valid objection to jurisdiction

According to Order VII Rule 10 (1), subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Thus, according to Order VII Rule 10(1) of CPC, a plaint is returned on the sole ground of lack of jurisdiction with the concerned court.

The court can lack jurisdiction on three occasions mentioned below;

• Territorial Jurisdiction
• Pecuniary Jurisdiction
• Subject matter Jurisdiction

For example, a plaint is filed in the city civil court by A against his employer for unlawful retrenchment from a job. Since there are specific labour courts to deal with these cases, the city civil court does not have the jurisdiction to adjudge and hence, plaint can be returned by the court. Under this rule, the court can return the plaint for lack of jurisdiction but the plaintiff has every right to file the plaint again in the appropriate forum.

In Kallu v. Phudan, AIR 1946 All 488 case, the Court held that where a suit filed in a revenue court is not triable by that court, the court should not dismiss the suit, but return the plaint to be presented to, the proper court.

In Hanamanthappa v. Chandrashekhrappa, (1997) 9 SCC 688 case, the Court held that on the return of plaint, the suit should be instituted when plaint is presented in the proper court. It will not be regarded as a continuation of the old suit. It will be treated as a fresh plaint subject to limitation, pecuniary jurisdiction and payment of court-fees.

In Gopi Krishna v. Avil Bose, AIR 1965 Cal 59 case, the Calcutta High Court said that “at any stage of suit” must mean at any stage of the suit before judgment therein is delivered.

In Visweswara v. Nair, (1912) 35 Mad 567 case, If court has no jurisdiction, it should return the plaint even though the claim is undervalued; and when presented to the proper court, the later court is bound to give credit for the fee levied by the former court.

Explanation attached to the rule states that “For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-Rule.”

If the Court has jurisdiction over some of the causes of action and thus has jurisdiction over a portion of the plaint there should be no reason why it cannot allow the plaintiff to amend the plaint to lop off those portions beyond its grip and proceed with the portions within its grasp. Where the Court finds that the plaint comprises causes of action within its jurisdiction as well as causes of action outside its jurisdiction, neither the suit can be dismissed as a whole nor the plaint can be returned as a whole.

In Smt. Sheela Adhikari v. Rabindra Nath Adhikari, AIR 1988 Cal. 273 case, the court held that the plaint, if it is to be returned, must be returned either as a whole or not at all and it is not for the Court to make a dissection of the plaint and then to retain a part and to return a part.

In Secretary of State v. Natabar, AIR 1927 Pat 254 case, a suit against two defendants, cognizable by a civil court as against the first and by the revenue court as against the second was filed in a civil court. The Patna High Court, directed that the plaint be returned for presentation to the revenue court, and that a copy of it should be  retained on the record for trial of the suit against the first defendant.

In Latu v. Rani Mahalaxmi Bai, AIR 1942 All 130 case, the Allahabad High Court indicated two alternatives: either to keep original plaint on the record and give a certified copy for presentation to the revenue court, or other proper court or dismiss that part of the suit which is beyond its jurisdiction and proceed to try the rest or strike out the bad part under Order VI Rule 16.

Procedure for Returning the Plaint:

The procedure for returning the plaint depends upon two circumstances. First, where the court in the initial hearings identify that it does not have the jurisdiction to try the case and it feels that the plaint needs to be returned and second, where the defendant has appeared and after which the court believes that plaint needs to be returned for lack of jurisdiction.

Case 1: Where the court in the initial hearings identify that it does not have the jurisdiction to try the case and it feels that the plaint needs to be returned

In this case, the Order VII Rule 10(2) mandates the court to endorse the following particulars on the plaint:

• Date on which the plaint was initially presented by the plaintiff.
• Date on which the plaint is being returned by the court. The returning date is not the one where the court formed the opinion but when the court actually returned the plaint.
• Cause title, i.e., the details of the party which presented the plaint.
• Reasons that compelled the court to return the plaint

In Moneys Transports v. Tanjore, AIR 1979 Mad 196 case, the Court held that the requirement of sub-rule 2 are mandatory and without the endorsement required by the sub-rule, the plaint cannot be returned and cannot be presented to the proper court. This means that the proceedings for the return of the plaint came to an end only when an endorsement was actually made on the plaint. Then only can the plaint be said to be ready for being returned for presentation to the proper Court.

Case2: where the defendant has appeared and after which the court believes that plaint needs to be returned for lack of jurisdiction.

Order VII Rule 10A applies to the situation where the plaint is returned after the defendant(s) has/have appeared before the court. The following list summarises the procedure that needs to be followed while returning the plaint:

• The court must intimate the plaintiff through registered post or any authorized manner that the plaint is to be returned for lack of jurisdiction.
• The plaintiff needs to appear before the court either personally or through his counsel
• The plaintiff is required to inform the court as to where the plaintiff proposes to file the new plaint after it is returned by this court.
• The court may fix the date of appearance of plaintiff and defendant before the competent court where the new plaint is to be filed.
• The court may, at the request of the plaintiff, serve notices to the plaintiff and defendant requiring them to appear before the competent Court and intimating them of the return of plaint.
• This notice shall serve as summon and no new summon will be required to be issued by the court where the returned plaint is filed

In Vicco Laboratories Bombay v. Hindustan Rimmer, AIR 1979 Del 114 case, the Court held that if after the defendant has appeared, the court is of the view that it has no jurisdiction and should, therefore, return the plaint, it must give intimation of such decision to the plaintiff. The plaintiff, thereupon, may make an application described in sub-rule 2. The ‘may’ in sub-rule 2 shows that it is his discretion to make or not make an application. It is not incumbent on him to do so. But if he does make the application and follows the procedure there laid down, the court shall fix the date of appearance by the parties in the court in which the plaint is to be presented and give notice of such date to the parties. Since the defendant by such notice is made awre of the suit against him and the date when he has to appear, the notice is treated as summons. As plaintiff choose the procedure laid down in sub-rule 2 and obtain an orderm, he naturally can have no right to appeal against the order returning the plaint. Application by him under sub-rule 2 is treayed as acceptance of the order of return.

In George Shipping Co. Ltd. v. MV Irene Pa Foreign Flagged Vessel, AIR 1997 Bom 280 case, the Court held that on return of plaint, the procedure laid down in rules 10 and 10A are to be followed. Fresh suit for the same cause of action is not maintainable.

Appeal Against Return of Plaint:

A Plaintiff can file an appeal from the order under Rule 10 of Order 7. Such appeal is maintainable under Order 43 Rule 1 (a). But where the plaint was returned on an application made by the plaintiff under Order 7 Rule10A (2) such appeal is not maintainable.

In Straw Products Ltd. v. Municipal Board Bhopal, AIR 1959 MP 253 case, the Court held that an appeal lies from an order returning a plaint to be presented to the proper court, whether the order is made by the court of first instance (Order 43 Rule 1(a)) or by the court of first appeal in the exercise of powers conferred upon it by Section 107 of CPC. But no second appeal lies from the order of the first Appellant Court (Nilkanth v. Balwant, AIR 1925 Bom 431)

Power of Appellant Court to Transfer Suit to the Proper Court:

According to Order VII Rule 10 B(1), where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted, (whether such Court is within or without the State in which the Court hearing the appeal is situated), and fit a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs. According to clause 2, the direction made by the Court under sub-rule (1), shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.

This rule has been added to Order VII with a view to empowering the court hearing an appeal against an order of return of plaint to direct that, instead of the plaint being returned, the suit may be transferred to the court in which it should have been instituted. Further, the provisions for abolish the necessary for serving the summons on the defendants, where the order of return of plaint was made after the appearance of the defendants in the suit.

In Latadevi v. Ramnath, AIR 1987 Bom 364 case, the Court held that the provision contained in R. 10B specify a detailed procedure and that too of a mandatory nature.

Conclusion:

As per the above-stated matter, it can be said, that jurisdiction of the court is necessary, to obtain adjudication and the decision of court without jurisdiction is a nullity in the eyes of the law, and not binding of anyone, though this is subject to the exceptions of section 21 of CPC. Return is different from rejection and it needs to be noted. Return of plaint does not connote that the plaint had mistaken or that the rules for drafting the plaint were not conformed to. It simply means that the court is not empowered to try the suit for which the plaint is filed. On the contrary, the plaint is rejected if the essential requirements of a plaint are not provided in the plaint or if the certain elements are vague and ambiguous. on the return of plaint, the suit should be instituted when plaint is presented in the proper court. It will not be regarded as a continuation of the old suit. It will be treated as a fresh plaint subject to limitation, pecuniary jurisdiction and payment of court-fees.

• Tags (1912) 35 Mad 567 , (1997) 9 SCC 688 , Admission of plaint , AIR 1927 Pat 254 , AIR 1942 All 130 , AIR 1946 All 488 , AIR 1965 Cal 59 , AIR 1979 Del 114 , AIR 1979 Mad 196 , AIR 1987 Bom 364 , AIR 1988 Cal. 273 , AIR 1997 Bom 280 , Civil Procedure Code , CPC , George Shipping Co. Ltd. v. MV Irene Pa Foreign Flagged Vessel , Gopi Krishna v. Avil Bose , Hanamanthappa v. Chandrashekhrappa , Institution of Suit , Jurisdiction , Kallu v. Phudan , Latadevi v. Ramnath , Latu v. Rani Mahalaxmi Bai , Moneys Transports v. Tanjore , Pecuniary jurisdiction , Plaint , Rejection of plaint , Return of plaint , Secretary of State v. Natabar , Smt. Sheela Adhikari v. Rabindra Nath Adhikari , Subject matter jurisdiction , Suit , Territorial jurisdiction , Vicco Laboratories Bombay v. Hindustan Rimmer , Visweswara v. Nair

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Stages of Civil Suit under CPC || Civil Procedure Code, 1908 ||

Table of Contents

Stages of the Civil Suit as per the Civil Procedure Code, 1908

1)              Presentation of the plaint Order 7 of CPC 1908:-

2)        service of summons on defendant (order 5):, 3)        appearance of parties:, 4)        ex-party decree(order 9):, 5)        filing of written statement by the defendant(order 8) :, 6)        production of documents by parties (plaintiff and defendant):, 7)        examination of parties:, 8)        framing of issues by the court (order 14):-.

9)        Summoning and Attendance of Witnesses (Order 16):-

10)    hearing of suits and examination of witnesses:-, 11)    argument:-, 12)    judgment:-, 13)    preparation of decree:-, 14)    execution of decree:-, related articles:-                                           , share with friends:.

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Very good information

Simple language. Layman like me is able to understand…..

What if the plaintif is abscent for cross examination ..what should the defendant should do ?

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Explained | Supreme Court explains the amendment of plaint under Order 6 Rule 17 of CPC and maintainability of fresh suit as per Order IX Rule 9 of CPC

Supreme Court said that if the alternative plea introduced by plaintiff through an amendment is one which the defendant set up in his written statement, although inconsistent with the original plea, the Court is not precluded from allowing the amendment if it does not prejudice the defendant.

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Supreme Court: In an appeal challenging the amendment of plaint and applicability of provisions of Order IX Rule 9 of Civil Procedure Code, 1908 (‘CPC’) in a case wherein the request for amendment in plaint, initially rejected but was allowed by the Revisional Court and High Court, the Division Bench of Sudhanshu Dhulia and J.B. Pardiwala, JJ. dismissed the present appeal while discussing at length the amendment of a plaint or written statement or filing of an additional written statement, and the maintainability of fresh suit in case of a decree passed against the plaintiff.

The original plaintiffs claim to be owners of the suit property mortgaged to defendant’s father through mortgage deed executed on 12-2-1957. It is alleged that the mortgagee continued to remain in possession of the suit property from 1957 till 2005 (Defendant’s father died in 2005), and mortgagor’s right in the suit property extinguished as per Article 61-A of the Schedule to the Limitation Act, 1963 . The Plaintiffs instituted a suit against the defendant and others in the Court of Small Causes on 15-3-2007 seeking declaration of Plaintiffs as the lawful owners praying for a decree of possession of the suit property let out to defendant’s father and that after his demise, the defendant stopped paying the rent and illegally inducted other defendants as sub-tenants in the suit property.

The Court observed that the Small Cause Suit was dismissed for non-prosecution due to Plaintiff’s absence vide order dated 20-10-2010. The Plaintiffs came up with another suit before the Civil Court under Section 83 of Transfer of Property Act, 1882 in 2009 in which, the request for amendment in plaint, allegedly seeking major changes related to status of the parties, was rejected vide order dated 20-5-2013. The same was challenged by the Plaintiffs through a civil revision application, which was allowed with costs due to delay. Defendants being aggrieved by the allowing of revision application approached through Article 227 of Constitution of India, but the High Court refused to interfere with the order passed by the District Court and rejected the said application . Thus, the defendant approached the Court through present appeal.

The Court referred to several cases including North Eastern Railway Admn. v. Bhagwan Das , (2008) 8 SCC 511 clarifying the question of granting or disallowing amendments under Order 6 Rule 17 CPC , which are not unjust to the other party and are necessary for deciding the controversy. The Court further mentioned P.A. Jayalakshmi v. H. Saradha , (2009) 14 SCC 525 , LIC v. Sanjeev Builders (P) Ltd. , 2022 SCC OnLine SC 1128 .

The Court through catena of cases concluded that amendment in plaint, written statement or filing of an additional written statement is subject to exception that any admission made in favour of the other party is wrong, and that all amendments of the pleadings necessary for determining real controversies in the suit should be allowed liberally, provided that the proposed amendment does not alter or substitute a new cause of action on the original lis. The Court further added that “inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.”

The Court pointed out that in the prior suit before the Small Causes Court, the Plaintiffs portrayed a landlord tenant relationship, wherein, the defendant unlawfully inducted sub-tenants. The present suit prays for redemption of mortgage and possession of suit property. The Court took the present suit two-fold regarding the tenant-landlord relationship and redemption of mortgage.

The Court referred to Srinivas Ram Kumar v. Mahabir Prasad , 1951 SCC 136 regarding parties’ entitlement to alternative pleas, as reiterated in G. Nagamma v. Siromanamma , (1996) 2 SCC 25 and Praful Manohar Rele v. Krishnabai Narayan Ghosalkar , (2014) 11 SCC 316 . The Court said that if the alternative plea introduced by plaintiff through an amendment is one which the defendant set up in his written statement, although inconsistent with the original plea, the Court is not precluded from allowing the amendment if it does not prejudice the defendant. The Court relied on State of M.P. v. Union of India , (2011) 12 SCC 268 throwing light on the purpose and object of Order 6 Rule 17 of CPC .

Addressing the defendant’s challenge against maintainability of present suit as per Order IX Rule 9 of CPC against the matter dismissed by the Small Causes Court, the Court clarified that “everything depends upon the cause of action, and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 of CPC .” The Court mentioned the case of Gaya Municipality v. Ram Prasad Bhatt , (1967) 2 SCWR 823 explaining the scope of Order IX Rule 9 of CPC . The Court through various cases clarified that “the cause of action in a suit has no reference to the defense taken in the suit, nor is it related to the evidence by which that cause of action is established.” The Court summed up the said Order IX Rule 9 of CPC that when the suit is wholly or partially dismissed under Rule 8, the Plaintiffs shall be precluded from bringing in a fresh suit, in respect of the same cause of action.

The Court also rejected the defendant’s contention based on Order IX Rule 9 CPC and observed that the present suit is not filed on the same cause of action as that before the Small Causes Court. The Court added that the right to redeem is conferred upon the mortgagor by an enactment which can only be deprived in the manner indicated and strictly complied with. It further added that “if the right of redemption is not extinguished, the provision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a second suit because as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action is different until the right of redemption is extinguished or a suit for redemption is time barred.”

The Court dismissed the present appeal and vacated the interim order passed for staying the further proceedings in the present suit. The Court also directed the Trial Court to dispose of the present suit, preferably within 6 months.

[ Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256 , judgment dated 14-3-2023 ]

Judgment authored by: Justice J.B. Pardiwala

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• ‘So Help Me Todd’ Creator & Cast React To Series Cancellation

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• Hulu Orders ‘Journey To The Center Of The Internet’ Adult Animated Presentation

By Nellie Andreeva

Nellie Andreeva

Co-Editor-in-Chief, TV

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EXCLUSIVE : Adult animation is among the best performing genres on Hulu with shows like Family Guy and Bob’s Burgers , and the streamer has been looking to expand its original offerings with series like Solar Opposites and the Futurama revival.

There is a new hopeful in the field, Journey to the Center of the Internet . Hulu has given a presentation order to the adult animated comedy, from creators and writers Jon Eidson and Nick Smith and 20th Television Animation.

Eidson and Smith executive produce with Zack Waxenberg and Michael Rotenberg of 3Arts. Dunn co-executive produces.

As members of the Los Angeles comedy troupe Extremely Decent, Eidson and Smith years ago developed a comedy with animated elements for FX with Rick and Morty co-creator Dan Harmon. Eidson and Smith are repped by of 3Arts and Ziffren Brittenham. Dunn is repped by Verve and Hansen Jacobson.

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