DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITYDAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAMVISAKHAPATNAM

PROJECT:PROJECT:

RETURN AND REJECTIONRETURN AND REJECTION

OFOF

PLAINTPLAINT

TABLE OF CONTENTS

1. LIST OF CASES........................................................ 3

2. ABBREVIATIONS................................................... 4

3. ABSTRACT............................................................... 5

4. RETURN OF PLAINT.............................................. 6

5. TO A LOWER COURT..............................................8

6. CONTINUATION OF A SUIT..................................9

7. ‘AT ANY STAGE OF THE SUIT’............................11

8. ENDORSEMENTS TO BE MADE BY JUDGE

WHILE RETURNING A PLAINT...........................13

9. REJECTION OF PLAINT......................................... 15

10. IN TOTO.................................................................... 18

11. BIBLIOGRAPHY..................................................... 23

LIST OF CASES

R.S.D.V. Finance Company Private Limited v. Shree Vallabh Glass Works

Limited, AIR 1993 SC 2094.

Amar Chand v. Union of India, AIR 1973 SC 313.

2

Hanamanthappa v. Chandrashekarappa, (1997) 9 SCC 688.

Madhub v. Jotindra Tagore, 5 Cal LJ 580 cf Mulla 1916.

Narayan Nair v. Cheria Kadhiri, 41 Mad 721 cf Mulla 1916.

Tarakanta Das v.  Kali Prasad, AIR 1919 Cal. 447.

Saleem Bhai v. State of Maharashtra

Samar Singh v. Kedar Nath AIR 1987 SC 1926.

Kalepu Pala Subrahmanyam v. Tiguti Venkatta Peddiraju, AIR 1971 AP 313.

Meenakshisundaram Chettiar v. Venkatachalam Chettiar, (1980) 1 SCC 616 :

AIR 1979 SC 989.

Tej Kiran v. Sanjiva Reddy, AIR 1970 SC 1573.

T.Arivadandam v. Satyapal, AIR 1977 SC 2421.

Bibhas Mohan Mukherjee v. Hari Charan Banerjee, AIR 1961 Cal. 491.

LIST OF ABBREVIATIONS

A.I.R – All India Reporter.

A.P. – Andhra Pradesh.

3

Cal. – Calcutta.

Cal LJ – Calcutta Law Journal.

CPC – Civil Procedure Code.

O. – Order.

R. – Rule.

Rs. – Rupees.

S. – Section.

SC – Supreme Court.

SCC – Supreme Court Cases.

SCR – Supreme Court Review.

v. – Versus.

RESEARCH METHODOLOGY

Aims and Objectives –

1)      What are Requirements of plaint?

2)      What circumstances the plaint will be returned?

4

3)      What circumstances the plaint will be rejected?

4)      To compare the remedies to the aggrieved parties in the above circumstances.

Scope and Limitations –

The circumstances and procedure for both returning a plaint and rejecting a plaint shall be

dealt with. It seeks to compare and contradict the same with special emphasis on the remedies

available to an aggrieved party.

Mode of Citation –

A uniform mode of citation is used as follows:

Author, Name of the Book, (Editor, Edition, Volume No., Place of Publication: Publisher,

Year of Publication), Page no.

Author, “Name of Article”, <URL>, (date of visit).

Method of Writing

A descriptive and comparative form of writing has been used.

Research Questions1)      What are the necessary constituents of a plaint?

2)      When would a plaint be returned by the court?

3)      Under what circumstances the plaint is rejected by the court?

4)      What are the remedies to the aggrieved party in both the above cases?

Sources of Data –

An exhaustive research was done using primary sources like case law as well as secondary

sources from books. An attempt has been made to use primary sources wherever possible, but

if primary sources are unavailable then authoritative secondary sources have been used.  A

comprehensive bibliography is provided at the end of the project.

RETURN OF PLAINT

Where at any stage of the suit, the court finds that it has no jurisdiction, either

territorial or pecuniary or with regard to the subject matter of the suit, it will return the plaint

5

to be presented to the proper court in which the suit ought to have been filed.1 Rule 10-A lays

down the procedure to be followed by the court before the plaint is ordered to be returned to

be presented to the proper court.2 It has been inserted to obviate the necessity of serving the

summons on the defendants in the suit. An appellate court can also return the plaint to be

presented to the proper court.3

Order 7 Rule 10 reads as follows: (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.]

When the plaint is filed in the proper court after getting back from the wrong court, it

cannot be said to be continuation of the suit. Suit must be deemed to be presented when it is

filed in proper court. The order returning the plaint is appealable.

Where at any stage of the suit the court finds that it has no territorial jurisdiction,

failure to return plaint for lack of territorial jurisdiction will not result in the decree of the

court in that case being void. Conversely, failure to return plaint for lack of pecuniary

jurisdiction will not result in the decree of the court in that case being void. Equally even

with regard to subject matter, the failure to return the plaint when a court does not have

subject matter jurisdiction will result in the decree passed by that court in that suit being void

and a nullity.

The Judge shall on returning the plaint endorses thereon the:

(i) date of presentation;

(ii) the name of the party presenting it; and

(iii) a brief statement of the reasons for returning it.4

It is now relevant to look at the decision in the case of R.S.D.V. Finance Company

Private Limited v. Shree Vallabh Glass Works Limited.5

1 R.10(1).2 C.K Thakwani, Civil Procedure, (5th Edition, Lucknow: Eastern Book Company, 2004), P. 164.3 R.10B.4 R.10(2).5 AIR 1993 SC 2094.

6

Facts:

In this case, the appellant filed a summary suit against the respondent in the original civil

jurisdiction of the High Court. The plaintiff had deposited a sum of Rs. 10,00,000/- @ 19%

per annum for 90 days through a cheque with the defendant. On the date of maturity, the

defendant failed to pay and requested the plaintiff to continue the deposit by giving 5 post

dated cheques of Rs. 2,00,000/- each and a cheque of Rs. 22,288.32 for interest. The 5

cheques were dishonoured for ‘insufficient funds’. The plaintiff in these circumstances filed a

summary suit against the defendant for Rs. 10,00,000/- as principal and interest at 19% per

annum with 90 days rests.

Findings of High Court:

A single judge of the High Court ruled in favour of the plaintiff, causing the defendant to

appeal before a Division Bench of the High Court which held that in the circumstances of the

case, this Court had no jurisdiction to entertain and try the suit. A prayer made on behalf of

the plaintiff seeking to amend the plaint was also rejected. The Division Bench allowed the

appeal and dismissed the suit.

Findings of Supreme Court:

Subsequently the case was brought before the Supreme Court on appeal by the plaintiff. The

Apex Court held that the entire reading of the plaint clearly showed that the suit was based

not only on the basis of deposit receipts of Rupees 10 lakhs but also on the basis of five post-

dated cheques. It held that the Division Bench was totally wrong in passing order of dismissal

of the suit itself when it had arrived to the conclusion that Bombay Court had no jurisdiction

to try the suit. The only course to be adopted in such a situation was to return the plaint for

presentation to the proper court and not to dismiss the suit.

Thus if a court finds at any stage during the suit that it does not have jurisdiction, it is

bound to return the plaint for presentation in the proper forum and cannot simply dismiss the

suit.

In case of inaccurate valuation, if it is found on proper valuation that the suit is

beyond the pecuniary jurisdiction of the court, the plaint is to be returned but not rejected.6

6 Sudipto Sarkar & V.R Manohar, Sarkar’s Code of Civil Procedure, (10th Edition, Volume 1, Nagpur: Wadhwa & Co., 2002), P. 993.

7

RETURN OF PLAINT TO A LOWER COURT:

In a situation where the Court has jurisdiction, but is not the Court of lowest

grade competent to try it, the plaint should be returned under O.7, R.10. The logic behind this

is that, if such suits are entertained then there will be overcrowding of the Courts of higher

grade with such suits and it is the object of the legislation to prevent the same. It should

however be noted that this rule does not compel a Court of a higher grade to return a plaint to

be presented to a Court of a lower grade in every instance irrespective of the circumstances of

the case.

It does however grant discretion to the higher court to be exercised in accordance with

legal principles with respect to the facts of each individual case in the interests of justice.

Where in such a case the evidence has been gone into and concluded, and the objection is

raised at the time of arguments, the Court should instead of returning the plaint proceed to

decide the case.7

The plaint can be returned under O 7, R.10, for the purpose of presentation of the

same to the court in which it should have been instituted. If however the suit, cannot be

instituted in any civil court then this rule will not have any effect and the suit will have to be

dismissed.8

It is clear from the section that if a suit is filed in Revenue Court which should be

tried in a Civil Court then the court should not dismiss the suit but rather return the plaint so

that it may be filed in the appropriate forum i.e. the Civil Court. Similarly, the opposite would

also hold true i.e. if a plaint is filed in a Civil Court which should have been filed in Revenue

Court, the court should return the plaint so it may be filed in the Revenue Court.

If a suit is instituted where in the plaint it is alleged that the defendant is a trespasser

and the court found that he was actually a tenant then the plaint should not be returned to be

presented to the Revenue Court that had exclusive jurisdiction over the matter, but that the

suit should be dismissed.9

CONTINUATION OF A SUIT:

7 Chitaley P. 64.8 D.V Chitaley, The Code of Civil Procedure, (9th Edition, Nagpur: All India Reporter Pvt. Ltd, 1977) P. 51.9 Solil Paul & Anupam Srivastava,  Mulla’s The Code of Civil Procedure, (16th Edition, Vol. 2, New Delhi: Butterworths, 2002),  p.1911.

8

O.7, R.10 is silent on whether when a plaint upon being returned is filed in the proper

court it should be treated as a continuation of the old suit or as a new one. The above was

decided upon by the Supreme Court in the case of Amar Chand v. Union of India.10 The

plaintiff was travelling by train. It collided and as a result he sustained serious injuries. He

filed a suit claiming damages under several heads. The Trial Court found that the claim for

damages was well founded to the extent of Rs. 33,503.00, but dismissed the suit on the

ground that it was barred by limitation. The High Court, on appeal by the plaintiff, confirmed

the finding of the Trial Court that the suit was barred by limitation and dismissed the appeal.

The main question, in the appeal, was whether the suit was filed within the period of

limitation. Article 22 of the Indian Limitation Act, 1908, is applicable. It provides for a

period of one year for a suit for compensation for injury to the person from the date when the

injury was committed. The plaintiff issued a notice under Section 80 of the Civil Procedure

Code before filing the suit. The suit was filed in the Court of the Senior Subordinate Judge of

Karnal, hereinafter called the ‘Karnal Court’. For ministerial purposes, the suit was

subsequently transferred to the Court of the Subordinate Judge, Panipat, hereinafter referred

to as the ‘Panipat Court’, which returned the plaint for presentation to the proper court. On

the basis of its finding that where the injury was committed was not situated within territorial

jurisdiction of the Court. The plaint was thereafter presented in the Court of the Senior

Subordinate Judge, Ambala.

The counsel for the appellant argued that the suit instituted in the trial Court by the

presentation of plaint after it was returned for presentation to the proper court was a

continuation of the suit filed in the Karnal Court and, therefore the suit filed in the Karnal

Court must be deemed to have been filed in the Trial Court.

The Court however, held that when the plaint is returned for presentation to the proper

Court and is presented in that Court, the suit can be deemed to be instituted in the proper

Court only when the plaint was presented in that Court. Thus the Court held that the on return

of plaint when the plaint is filed in the proper forum it will not be regarded as a continuation

of the old suit and hence the suit instituted in the Trial Court upon the return of the plaint by

the Panipat Court could not be treated as a continuation of the suit filed in the Karnal Court.

SUPREME COURT RULING ON CONTINUATION OF A SUIT:

10 AIR 1973 SC 313.9

The Supreme Court further held in the case of Hanamanthappa v. Chandrashekar

appa11 that such a plaint (i.e. one which has been returned and then filed in the court which

has jurisdiction) would be treated as a fresh plaint subject to limitation, pecuniary jurisdiction

and payment of court fees and hence no permission would be required from any of the courts

involved to amend a plaint upon its return.

Facts:

The respondents filed a suit in the Court of District Munsiff, Navalagund. On grounds

of lack of territorial jurisdiction it was returned for presentation to the proper Court.

Accordingly, after making necessary amendment to the plaint the respondents represented the

suit in Civil Court at Dharwad. The petitioners filed an application for dismissal of the

petition on the ground that the plaint was materially altered, without seeking permission for

amendment of the plaint as required under Order VI, Rule 17 of C. P. C.

The High Court dismissed the petition. The court held that the object of Order VII,

Rule 10 is that the plaintiff, on return of the plaint, can either challenge in an appellate forum

or represent to the Court having territorial jurisdiction to entertain the suit. In substance, it is

a suit filed afresh subject to the limitation, pecuniary jurisdiction and payment of the Court

fee as had rightly been pointed out by the High Court. Therefore, it cannot be dismissed on

the ground that the plaintiff made averments which did not find place in the original plaint

presented before the Court of District Munsiff, Navalgund.

The date of representation is the date of institution for the purpose of limitation,

though the plaintiff can have recourse to S. 1412 of the Limitation Act for excluding the

period during which the proceedings were pending in the original court. The court-fee

payable on the plaint is what is payable under the law in force at the time of representation. 13

The plaintiff will be entitled to the benefit of the court fee paid in the original court but this

can only be when the same plaint is represented. Where after return of the plaint, it is

substantially altered such that it is not substantially the original plaint filed then a fresh court

fee will have to be paid.14

THE USAGE OF PHRASE ‘AT ANY STAGE OF THE SUIT’:

11 (1997) 9 SCC 688.12 Section.14 – Exclusion of time of proceeding bonafide in court without jurisdiction13 Mulla p.191214 Sarkar p. 993.

10

O.7, R.10 uses the phrase “at any stage of the suit”. This would cover any stage of the

suit beginning with the filing of the plaint till the judgment is given. This would also include

a stage prior to the filing of the written statement. It should be pointed out here that no court

can blindly accept any plaint without prima facie satisfaction of its jurisdiction to entertain

the matter. If a claim is overvalued and the fact appears on the face of the plaint, it is the duty

of the court to return the plaint to the plaintiff.15

An appeal would lie from any order made under O.7, R.10 under Section 104 as

provided for in O.43, R.1 of the CPC. Thus an appeal would lie from an order returning the

plaint made by the court of first instance or by the first appellate court under Section 107 of

the CPC but there exist no right to a second appeal from the order of the first appellate

court.16

There is however one major complexity in this regard. For instance, where A files a

plaint in the Munsif’s court, the Munsif returns the plaint for presentation to the proper court,

holding that the suit is beyond his pecuniary jurisdiction. On the plaint being presented to the

subordinate court, it is once again returned on the ground that the Munsif’s court had

jurisdiction. Now the question arises whether A is entitled to appeal to the District Court from

the order of the Munsif having regard to the fact that he is in obedience with the order filed in

the plaint at the Subordinate Judge’s Court.

RIGHT TO APPEAL:

To one side from what was held in Hanamanthappa case, in Beni

Madhub v. Jotindra Tagore, 17 (the question was answered in the negative by the Calcutta

High Court) on the ground that the party had, by electing to file a plaint in the Subordinate

Court, forfeited his right of appeal under O.43 R.1 of the CPC. The question was considered

by the Madras High Court in Narayan Nair v. Cheria Kadhiri 18 and it was held that the right

of appeal conferred by O.43, R.1 of the CPC, could not be lost by reason of the order having

been complied with.

The Calcutta High Court has subsequently held in the case of Tarakanta Das v.  Kali

Prasad19 that if a party reserves the right to appeal against the order then the right is not lost.

15 Mulla p.1913.16 Sarkar p.996.17 5 Cal LJ 580 cf Mulla 1916.18 41 Mad 721 cf Mulla 1916.19 AIR 1919 Cal. 447.

11

The facts:

The plaintiffs filed a suit in the Court of the Subordinate Judge of Barisal for a

declaration of their zamindari right to some land and they valued the suit at Rs. 5,100. The

defendants urged that the valuation was excessive and that the true value was not more than

Rs. 1,000. The Subordinate Judge went into this question and found that the value of the suit

was Rs. 1,385. Since there was a Munsif Court in Barisal empowered to try suits upto Rs.

2,000, the Subordinate Judge returned the plaint to be filed in the Munsifs Court. The plaintiff

amended the plaint accordingly and filed it in the Munsifs court but with the following

written on the plaint : “Amended under Court’s order, but without giving up the right of

appeal and re-filed today without giving up the right to appeal”

The Calcutta High Court distinguished this case from that of Beni Madhub v. Jotindra

Tagore on the basis that in this case the plaintiffs had declared that they were going to appeal.

The Court went on to hold that the action of filing the plaint in the Munsifs Court did not take

away the party’s right to appeal.

The right to appeal should under no circumstances be lost even if a party proceeds in

accordance with the order of a court without reserving the right to appeal. The only

circumstance under which the party would lose his right to appeal would be if the procedure

laid out in O.7, R.10A is followed.

Sub Rule 2 of O.7, R.10 of the CPC basically lays down that certain endorsements are

to be made by the judge returning the plaint. The absence of this would only amount to an

irregularity.20 It would not make the order for return incomplete or ineffective.

The Judge shall on returning the plaint endorses thereon the:

(i) date of presentation;

(ii) the name of the party presenting it; and

(iii) a brief statement of the reasons for returning it.21

ENDORSMENTS TO BE MADE BY A JUDGE WHILE RETURNING A PLAINT:

O.7 R.10A reads as follows

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

20 M.P Jain, The Code of Civil Procedure, (1st Edition, Nagpur: Wadhwa & Co., 2004), P. 552.21 R.10(2).

12

(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 the 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 servethe 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.

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 as described under sub-rule (2). The ‘may’

in sub-rule (2) shows that it is in his discretion to make or not make an application. It is not

incumbent on him to do so.

If however the plaintiff does make the application and follows the procedure laid down, the

court shall fix the date of appearance of the parties in the court in which the plain is to be

presented and give notice of such date to the parties.

Since the defendant by such notice is made aware of the suit against him and the date when

he has to appear, the notice is treated as a summons. As the plaintiff chooses the procedure

laid down in sub-rule (2) and obtains an order, he naturally can have no right of appeal

13

against the order returning the plaint Application by him under sub-rule (2) is treated as

acceptance of the order of return.

O.43, R.1 of the CPC which covers appealable orders clearly makes an exception where the

plaintiff follows the procedure laid down in O.7, R.10A of the CPC. Further where the

plaintiff avails himself of the procedure of applying to the court under O.7, R. 10A(2) of the

CPC and the application is granted by the court then O.7, R. 10A(5) bars an appeal against

the order returning the plaint. On the return of plaint, the procedure laid down in rules 10 and

10A are to be followed.22

POWER OF APPELLATE COURT TO TRANSFER SUIT TO THE PROPER COURT:

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 Limilaiion 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.

Rule 10B empowers the court hearing an appeal against the order returning a plaint to order

that instead of returning the plaint, the suit may be transferred to the court where it should

have been filed. Such a court may or may not be within the State in which the appellate Court

is situated. Such an order can be passed only if the plaintiff makes an application and desires

the suit to be transferred. The order is subject to the provisions of the Limitation Act and

without prejudice to the right of the parties to dispute the jurisdiction of the transferee court.

Finally, fixing the date for appearance does away with the necessity of a fresh service of

summons.23

REJECTION OF PLAINT

Rejection of plaint is different from dismissal of suit. In the latter a decree is passed while in

the former is only a deemed decree as per Section 2(2) of the CPC. “Dismissal” for non-

22 Mulla 1918.23 Mulla 1919.

14

payment of court-fee amounts to rejection of plaint and not really a dismissal of the suit.

Rejection of plaint does not preclude the filing of a fresh suit involving the same parties and

the same cause of action (i.e. it is not hit by res judicata).24

O.7 R.11 of the CPC reads as follows:

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 written upon paper

insufficiently stamped, and the plaintiff, on being required by the Court to supply the

requisite stamp-paper within a time to be fixed by the Court, fails to do so ;

(d) where the suit appears from the statement in the plaint to be barred by any law:

[(e) where it is not filed in duplicate;]

[(f) where the plaintiff fails to comply sub-rule (2) 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 for 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.]

To properly understand at what stage the court can use its power under O.7, R.11 the case

of Saleem Bhai v. State of Maharashtra needs to be looked at.

Facts:

The appellant filed an application under O.7, R.11 of the CPC, 1908 in the suits

praying the court to dismiss the suits as per Clauses (a) and (d). The respondents also filed the

application under O.8, R.10 CPC to pronounce judgment in the suits as the appellant did not

file his written statement. There was also an application by the appellant under S.151 CPC

praying the court to decide first the application under O.7, R.11 of CPC.

24 Sarkar P. 1004.15

The Trial Judge dismissed the application under O.8, R.10 as well as the application

filed under Section 151 C.P.C. Insofar as the application under O.8, R.11 of CPC was

concerned, the Judge directed the appellant to file his written statement.

The appellant filed revision petitions before the High Court of Madhya Pradesh. The

High Court, while confirming the order of the Trial Judge reiterated the direction, that the

appellant should file his written statement and observed that the trial court shall frame issues

of law and facts arising out of pleadings and that the trial court should record its finding on

the preliminary issue in accordance with law before proceeding to try the suit on facts.

Aggrieved by this the petitioners approached the Supreme Court.

The Apex Court held that the trial court can exercise the power under O.7, R.11 CPC

at any stage of the suit, before registering the plaint or after issuing summons to the defendant

at any time before the conclusion of the trial. For the purposes of deciding an application

under Clauses (a) and (d) of O.7, R.11 CPC, the averments in the plaint are germane; the

pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

Therefore, a direction to file the written statement without deciding the application

cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.

The order thus, suffers from non-exercising of the jurisdiction vested in the court as well as

procedural irregularity.

O.7, R.11 does not place any restriction or limitation on the exercise of power of the

court. It does not either expressly or by necessary implication provide that the power should

be exercised at any particular stage only. In the absence of any statutory restriction, it is open

to the court to use this power at any stage.25

EXCERSISE OF COURT’S POWER EVEN AFTER ISSUES HAVE BEEN FRAMED

AND ITS APPLICABILITY TO ELECTION PETITIONS:

The case of Samar Singh v. Kedar Nath26 dealt with whether the court could use its

powers under O.7, R.11 even after issues had been framed. This case also dealt with whether

O.7, R.11 of the CPC would be applicable to election petitions.

25 Mulla 1922.26 AIR 1987 SC 1926.

16

Facts:

During the General Elections, the appellant filed his nomination paper for contesting

election to the Lok Sabha. The appellant’s nomination paper was accepted and he was

allotted symbol of “Lion”. The appellant, Kedar Nath (the respondent), and 17 other

candidates contested the election. The appellant could poll only 617 votes while Kedar Nath

polled 2,55,828 votes and he was declared elected. The appellant filed election petition

challenging the respondent’s election on a number of grounds.

The respondent appeared before the High Court, filed written statement and contested

the election petition. After issues were framed, the respondent made an application for

rejecting the election petition under O.7, R. 11 of CPC on the ground that it disclosed no

cause of action. A Single Judge of the High Court after hearing the parties at length rejected

the election petition on the finding that the election petition did not disclose any cause of

action. The appellant approached the Supreme Court challenging the correctness of the High

Court order. The appellant argued that the High Court had no jurisdiction to entertain any

application under O.7, R.11 of CPC after the settlement of issues.

The Supreme Court held that the provisions of the Civil Procedure Code as applicable

to trial of suits have been made applicable under Section 92 to the trial of election petition as

nearly as possible. The provisions of the CPC do not apply in their entirety to the trial of the

election petition but the provisions of O.7, R.11 apply to an election petition and the High

Court has jurisdiction to reject a plaint which does not disclose any cause of action. It would

be in the interest of the parties to the petition and to the constituency and in public interest to

dispose off preliminary objection and to reject an election petition or a plaint if it does not

disclose any cause of action. Thus the powers of the court under O 7 r 11 may be used even

after the issues have been framed.

REJECTION OF PLAINT IN TOTO:

A plaint cannot be rejected in part, it has to be rejected in toto. This was laid down in

the case of Kalepu Pala Subrahmanyam v. Tiguti Venkatta Peddiraju27.

Facts:

The petitioner had filed in a suit informa pauperis for recovery of possession of plaint

A to C Schedule properties. The court held that he had means to pay and rejected his 27 AIR 1971 AP 313.

17

application. This order was confirmed by the High Court in revision and thereafter, the

petitioner restrict his right only to a half share and paid a court-fee of Rs. 2,602/-. Then, the

learned Subordinate Judge held that the suit was barred by time in respect of items 1, 2 (a), 2

(b), 2 (c) and 3 (a) of plaint B Schedule and items 1 and 2 (a) of plaint C Schedule thereby

rejecting the plaint in respect of those items. As far as item 4 of plaint B Schedule was

concerned, he directed the plaintiff to file an application to treat the relief regarding Item 4 as

one filed under S.47, CPC. The plaintiff then filed a revision petition at the High Court. The

High Court dismissed the petition and directed the rejection of the entire plaint as opposed to

the action of the Subordinate Court. It held that under O.7, R.11, the entire plaint had to be

rejected and not just one or more parts.

There are certain cases in which a plaint shall be rejected. They are specified under O.7,

R.11of Civil Procedure Code as follows:

Clause (a) – When the plaint does not disclose a cause of action

The Court is bound to reject the plaint if it does not disclose a cause of action. But in order to

reject the plaint on this ground, the court must look at the plaint and at nothing else. A plea

that there is no cause of action is different from one that the plaint does not disclose a cause

of action. In the latter case there is a duty upon the court to decide the issue before the issuing

of summons. The power to reject a plaint on this ground is exercised only if the court comes

to a conclusion that even if all the allegations set out in the plaint are proved, the plaintiff

would not be entitled to any relief. In that case the court will reject the plaint without issuing

summons to the defendant. Moreover, the plaint can be rejected as a whole if it does not

disclose the cause of action. A part of it cannot be rejected.

Clause (b) – Where the relief claimed is undervalued

If the relief claimed is under valued and the valuation is not corrected within the time fixed

by the court, the plaint must be rejected and if the correct valuation would render the court

incompetent to entertain the suit then clause (b) does not apply and in such a case the correct

course of action would be for the plaint to be returned under O.7, R.10 of the CPC. The court

however cannot itself fix a valuation in place of the plaintiff’s valuation. The Court cannot

pass a composite order requiring the valuation to be corrected and the additional court fee to

18

be paid on the corrected valuation. When a suit is not valued properly, the correct order to

pass is to call upon the plaintiff to give the correct valuation.28

In the case of Meenakshisundaram Chettiar v. Venkatachalam Chettiar29

Facts:

The appellant filed the suit praying for a decree against the respondent/defendant to

render account of all transactions of the respondent as petitioner’s agent including the amount

recovered by him from Alagappa Chettiar and pay to the petitioner the amount found due on

such rendition of accounts. In the written statement filed by the defendant it was contended

that the suit is not properly valued and proper court-fee has not been paid. The trial court

framed an issue as to whether the suit had been properly valued and proper court-fee had

been paid. It answered the issue holding that the plaint has been properly valued and proper

court-fee has been paid. The suit was dismissed by the trial court on the ground that the

plaintiff has not proved that the defendant is liable to account and that the suit was barred by

limitation. On an appeal by the plaintiff to the High Court, the High Court found that the

plaint made it clear that apart from the money which the defendant is liable to pay to the

plaintiff as his agent, the plaintiff has quantified the amount at Rs. 9,74,598.35 as payable by

the defendant to him which is made clear in allegations in paragraphs 6, 7, 8 and 9 of the

paint and therefore the plaintiff ought to have valued the suit at Rs. 9,74,598.35. The appeal

was disposed of on the ground that the plaint had not been properly valued and hence the

petitioner appeared before the Supreme Court.

The Court held that O. 7, R. 11(b) casts a duty on the court to reject the plaint when

the relief claimed is undervalued. If on the materials available before it the Court is satisfied

that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the

plaint is liable to be rejected. It is therefore necessary that the plaintiff should take care that

the valuation is adequate and reasonable taking into account the circumstances of the case. In

coming to the conclusion that the suit is undervalued the court will have to take into account

that in a suit for accounts the plaintiff is not obliged to state the exact amount which would

result after the taking of the accounts. If he cannot estimate the exact amount he can put a

tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff

cannot arbitrarily and deliberately undervalue the relief. The only requirement is that there

must be a genuine effort on the part of plaintiff to estimate his relief and that the estimate

28 Chitaley 73.29 (1980) 1 SCC 616 : AIR 1979 SC 989.

19

should not be a deliberate underestimation. The court further held that in the present case the

estimate of the relief as given by the plaintiff was not inadequate or unreasonable or a

deliberate underestimation and hence the court allowed the appeal and set aside the judgment

of the Madras High Court.

Clause (c) Where the plaint is insufficiently stamped.

This provision will only have effect when there is some stamp on the paper. A situation

where there exists no stamp at all will not come under the purview of this rule. The Court

would exercise it’s power under this rule when the suit is properly valued but insufficiently

stamped. Section 14930 of the CPC empowers the court at any stage to allow a plaintiff to

make up a deficiency in court fees, and provides in effect that when the deficiency has been

made up, the plaint is as valid as if it had been properly stamped when presented. If the

requisite court fee is paid within the time extended by the court, the suit or appeal must be

treated as instituted from the date of presentation of plaint or memorandum of appeal for the

purpose of limitation as well as payment of court fee. If the plaintiff cannot pay the court

fees, he may apply to continue the suit as an indigent person.

Clause (d) Where the suit appears to be barred by law

Where the suit appears from the statements in the plaint to be barred by any law, the

court will reject it. A good example of rejection of plaint under this head can be seen in the

case of Tej Kiran v. Sanjiva Reddy31.

Facts:

A full bench of the High Court rejected a plaint by six appellants claiming a decree

for damages for defamatory statements made by former Speaker of the Lok Sabha, Home

Minister and three members of Parliament on the floor of the Lok Sabha during a motion. It

held that no proceedings could be taken in a Court of law in respect of what was said on the

floor of Parliament in view of Article 105(2) of the Constitution. However, certified the case

as fit for appeal under Article 133(1)(a) of the Constitution. The Supreme Court affirmed the

decision of the High Court as the filing of such a suit would be barred by Article 105(2) of

the Constitution32.

Similarly if the plaint shows that the suit is barred by limitation, the plaint will have to

be rejected, however if the question of limitation is connected with the merits of the case, the

30 Section.149 – Power to make up deficiency of court-fees.31 AIR 1970 SC 1573.32 Section.105(2).

20

matter requires to be decided along with other issues.33 The plaint may also be rejected if it is

not filed in duplicate.

For instance, where in a suit against the government, the plaint does not state that the

notice as required by S. 80 of the Code has been given; the plaint will be rejected under this

clause. But where waiver of such notice is pleaded, the court cannot reject the plaint without

giving the plaintiff an opportunity to establish that fact.

PROCEDURE:

Where a plaint has been rejected by the court, the judge will pass the order to that

effect and will record reason for it.34

NON COMPLIANCE WITH STATUTORY PROVISIONS:

The grounds given under Section 11 are not exhaustive. In the case

of T.Arivadandam v. Satyapal35, the Supreme Court held that if on a meaningful reading of

the plaint it is manifestly found to be vexatious and meritless in the sense of not disclosing a

clear right to sue, the court may exercise its power of rejection under this rule.

An order rejecting a plaint is a deemed decree as per Section 2(2) of the CPC, and

hence would be appealable under Section 96 of the CPC. It would be relevant to look at the

case of Bibhas Mohan Mukherjee v. Hari Charan Banerjee36 

The suit out of which this reference arises was one for a declaration that a certain

preliminary decree is a suit for partition passed on compromise was invalid, inoperative and

fraudulent and for certain other reliefs one of which was for a new preliminary decree.

Initially the plaintiffs treated the reliefs claimed by them as for partition only and paid a

court-fee stamp of Rs. 15/- upon the plaint. On the objection of the Court, however, the

plaintiffs put in an additional court-fee stamp of Rs. 20/-. This court-fee was tentatively

accepted by the Court as sufficient subject to any objection that might be raised by the

defendants. After the defendants had entered appearance in the suit, they raised a point as to

the sufficiency of court-fees paid by the plaintiffs.

The issue as to sufficiency of court-fees was tried as a preliminary issue in the suit

and upon that issue the subordinate Judge held that the suit filed by the plaintiffs was not for

33 Takwani 165.34 O.7, R.12.35 AIR 1977 SC 2421.36 AIR 1961 Cal. 491.

21

partition but one for a declaration with consequential reliefs under Section 7 (iv) (e) of the

Court-fees Act and held that the plaintiffs were required to pay ad valorem court-fees upon a

sum of Rs. 8,000/-. The learned Subordinate Judge directed the plaintiffs to pay deficit court-

fee to the extent of Rs. 610/- , in default, the suit would stand dismissed under Section 8-B

(3) of the Court-tees Act.

After an unsuccessful attempt to get an extension of time the plaintiffs eventually

failed to deposit the additional court-fees as directed by the Court with the result that the suit

stood dismissed in accordance with the provisions of Section 8-B (3) of the Court-fees Act. A

decree was drawn up by the Court and against that decree the plaintiffs filed an appeal to this

Court.

When the appeal came up for hearing a preliminary objection was raised on behalf of

the respondents on the ground that the order passed by the Subordinate Judge under Section

8-B (3) of the Court fees Act was not a decree within the meaning of Section 2 (2) of the

Code of Civil Procedure and as such the appeal filed by the plaintiff’s was not competent.

The court held that on the failure of the plaintiff to pay deficit court-fees after the

registration of the plaint the Court may exercise the powers conferred upon it by both Order

7, Rule 11 (c) of the Code of Civil Procedure and also by Section.8-B (3) of the Court-fees

Act. Under Order 7, Rule 11 (c) of the Code of Civil Procedure the plaint shall be rejected.

Under Section.8- B (3) of the Court-fees Act the suit shall be dismissed. In form, the order

passed under Section.8-B (3) of the Court-fees Act is an order of dismissal of the suit. In

substance, the order is an order of rejection of the plaint.

Whether the suit he dismissed under Section 8-B (3) of the Court-fees Act or whether

the plaint be rejected under Order 7, Rule 11 (c) of the Code of Civil Procedure, in either case

there is no decision on the merits. In my opinion, the Order of dismissal of the suit under

Section 8-B (3) of the Court-fees Act is, in substance, an order of rejection of the plaint and

as such amounts to a decree within the meaning of Section 2(2) of the Code of Civil

Procedure.

Thus all cases of rejection of plaint under Order 7, Rule 11 are appealable.

22

BIBLIOGRAPHY

Books referred:

C.K Thakwani, Civil Procedure, (5th Edition, Lucknow: Eastern Book Company, 2004),

p. 164.

D.V Chitaley, The Code of Civil Procedure, (9th Edition, Nagpur: All India Reporter Pvt.

Ltd, 1977) p. 51.

M.P Jain, The Code of Civil Procedure, (1st Edition, Nagpur: Wadhwa & Co., 2004), p.

552.

Sudipto Sarkar & V.R Manohar, Sarkar’s Code of Civil Procedure, (10th Edition,

Volume. 1, Nagpur: Wadhwa & Co., 2002), p. 993.

Solil Paul & Anupam Srivastava,  Mulla’s The Code of Civil Procedure, (16th Edition,

Vol. 2, New Delhi: Butterworths, 2002),  p.1911.

23