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 Rule 11 of the Civil Procedure Code, deals with the rejection of plaint. The CPC empowers the civil courts to reject the plaint to the plaintiff if the court believes that the requirements are not fulfilled. Rejection of plaint weeds about frivolous, vexatious and improper plaints at the very outset, thus, saving judicial time and resources.

The rejection can be done at any stage before the conclusion of trial, and the ground on which it should be rejected must be considered by the simple reading of the plaint only and not on the basis of allegations made by the defendant in his written statement and not also on the basis of application for rejection. An order of rejection of plaint is a deemed decree, as provided under Section 2(2) of CPC, 1908.

Object of Order VII Rule 11:

The real object of Order 7, Rule 11 of the Code is to keep out of Courts irresponsible law suits. In order to consider Order 7 Rule 11, the Court has to scrutinize the averments/plea in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. If the allegations are vexatious and meritless and not disclosing a clear right or material to sue, it is duty of the trial Court to exercise his power.

In Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 case, the court observed that the whole purpose of confernment of such powers (Order VII Rule 11) is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocle need not be kept hanging over his (Defendant’s) head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law.

In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, case the Court observed that it is (Order VII Rule 11) a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7, Rule 11 of the Code can be exercised. Court further held that rejection of plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.

In Kuok Oils and Grains PTE Ltd. v. Tower International Pvt. Ltd., AIR 2005 Guj 9 case, the Court observed that the whole purpose of conferment of powers under Order 7, Rule 11 of the Code of Civil Procedure is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and must be terminated and brought to an end at the earliest. The applicant should not be put to the long and expensive process of trial and the burden of litigation when it is clear at the outset that original plaintiff have no cause of action against the applicant and the plaint discloses no cause of action whatsoever.

In Sakeen Bhai v. State of Maharashtra, AIR 2003 SC 759 case the Court held that a perusal of Order VII, Rule 11, C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order. VII, Rule. 11, C.P.C. 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 Rule. 11 of Order. VII, C.P.C., 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 under Order 7, Rule. 11, C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court.

In Dahiben v. Arvindbhai Kalyanji Bhanusali, (Gajra)(D), 2020 SCC OnLine SC 562 Hon’ble Apex Court held that – The power conferred on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.

1. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
2. The documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
3. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
4. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration
5. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M. V. Sea Success I, (2004) 9 SCC 512.
6. As observed in Hardesh Ores (P.) Ltd. v. Hede & Co., (2007) 5 SCC 614 case, it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact..
7. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the Court would be justified in exercising the power under Order VII Rule 11 CPC.
8. As held in Saleem Bhai v. State of Maharashtra ,7 (2003) 1 SCC 557 case, the power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.
9. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
10. While considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory.
11. As held in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170 Case, the Law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
12. As held in Madanuri Sri Ramachandra Murthy v. Syed Jalal, SLP (Civil) No. 35352 of 216 case, If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, it should be nipped in the bud, so that bogus litigation will end at the earliest stage.
13. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the Court.

In Kalepur Pala Subrahmanyam v Tiguti Venkata, AIR 1971 AP 313 case, the Court said that a plaint cannot be rejected in part and retained part under this rule. It must be rejected as a whole and not with the rejection of one part and acceptance of another. This judgment is considered as a landmark judgment on the rejection of the plaint.  

Grounds of Rejection of Plaint:

The plaint shall be rejected in the following cases:-

1. where it does not disclose a cause of action;
2. 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;
3. 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;
4. where the suit appears from the statement in the plaint to be barred by any law;
5. where it is not filed in duplicate;
6. 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 form 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. Thus, the court on these grounds does not prima facie reject the plaint, it provides for the time to the plaintiff to cure such defects and still if the defects are not removed, the court shall proceed with such rejection. Thus, the proviso further provides that when the time is fixed by the court for removal of defects under clause (b) or (c) has expired, further time shall not be extended unless the court is satisfied that plaintiff was prevented by any cause of exceptional nature.

It is interesting to note that there are two consequences provided in the Code for not filing requisites and copies of plaint within seven days after the order of the Court under Order 7 Rule9. Firstly, the plaint can be rejected under Order 7 Rule11(f). Secondly, the suit can be dismissed under Order 9 Rule2. However, the remedy in case of rejection of plaint is provided in Order 7 Rule13 by way of presentation of fresh plaint. In case of dismissal of suit, the remedy lies in Order9 Rule 4 which provides that the plaintiff may bring fresh suit or the Court may restore suit to file. Meaning thereby that when the plaint is rejected under Order7 Rule 11 (f) the same cannot be restored by the Court and the only remedy to the plaintiff is presentation of fresh plaint. In term of the definition of Decree as given in Section2(2) it is deemed to include rejection of a plaint. Thus rejection of plaint is a decree of the court.

Some of the situations in which the plaint is rejected are discussed in details as follows:

a) The cause of action is not disclosed:

Under Order VII Rule 11(a), if the cause of action is not disclosed then it is not possible to prove the damage caused to the plaintiff. To seek relief against the defendant, the facts need to be mentioned clearly.

In Laxman Prasad v. Progigy Electronics Ltd., AIR 2008 SC 685 case, the Court observed that cause of action and applicability of law are two distinct different and independent things and one cannot be confused with the other. The expression ‘cause of action‘ has not been defined in the Code. It is however settled law that every suit presupposes the existence of a cause of action. If there is no cause of action, the plaint has to be rejected [Rule 11(a) of Order VII]. Stated simply, cause of action means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove to succeed in the suit. The classic definition of the expression (cause of action) is found in the observations of Lord Brett in Cooke v. Gill, 1873 (8) CP 107: 42 LJ CP 98. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

In Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 case, the Court held that if clever drafting has created the illusion of a cause of action it should be nipped in the bud at the first hearing by examination of the parties under order 10 of the code.

b) The Relief Claimed is Undervalued:

Under-valuation of the plaint would have the impact of circumvention around the law on court fees and also the rules related to pecuniary jurisdiction of the court. As per Order VII Rule 11(b), if the amount of compensation that is being demanded by the plaintiff is lesser than the requisite, the plaint can be rejected. In this case court is empowered to grant extra time to correct the error of under-valuation within the given time frame. If the plaintiff fails to do so within the time given by the court, then the plaint is rejected. Such rejection amounts to dismissing of the suit. A fresh plaint may be presented under Order 7 Rule 13 of the Code. If the plaintiff doesn’t correct even after that, then even in such a situation, by virtue of the proviso to Rule 11, court may further grant extra time in exceptional situations.

In Annapurna Dassi v. Sarat Chandra, AIR 1935 Cal 157 case, the Court held that if the relief claimed is undervalued and the valuation is not corrected within the time fixed by the court, the plaint must be rejected and such rejection is dismissal of the suit.

In Commercial Aviation & Travel Company v. Vimal Pannalal, AIR 1988 SC 1636 case, the Hon’ble Supreme Court said that the plaintiff cannot   whimsically choose a ridiculous figure for filling the suit where there        are positive materials and/or objective standards of valuation of the relief appearing on the face of the plaint. These materials or objective standards will also enable the Court to determine the valuation for the purpose of Order VlI, Rule 11(b), of the Code of Civil Procedure.

In Meenakshisundaram v. Venkatachalam, AIR 1979 SC 989 case, the Court said that in considering the question whether the suit is properly valued or not, the court must confine its attention to the plaint only and should not look at the other circumstances which may subsequently influence the judgment of the court as to the true value of the relief prayed for.

In Roop Lal Sathi v. Nachhatter Singh Gill, AIR 1982 SC 1559 case, the Court held that a part of the plaint cannot be rejected and if no cause of action is disclosed the plaint should be rejected as a whole.

c) The Plaint is Insufficiently Stamped:

As per Order VII Rule 11(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. However, as in case of under-valued plaint, court may grant extension of time here also under Rule 11(c) and the Proviso.

It must be noted here that under Rule 11(b) and (c) there is no automatic rejection of plaint. If the court comes to a conclusion that relief claim is undervalued or plaint is insufficiently stamped then the court is required to give sufficient time to the plaintiff to correct the valuation and deposit the requisite court fee. If upon giving sufficient time the plaintiff fails to correct the same then the power under these rules is to be exercised. If plaintiff cannot pay the court fees, he may apply to continue the suit as as indigent person (pauper).

In Mannan Lal v. Chhotaka Bibi, AIR 1971 SC 1374 case, the Court held that if the reqyuisite court-fee is paid within the time extended by the court, the suit or appealmust be treated as instituted from the date of presentation of the plaint or memorandum of appeal for the purpose of limitation as well as payment of court fee.

d) The Suit is Barred by Law:

In a case where the relied claimed is barred by law, the plaint shall be rejected by the court. The plaint is mostly rejected due to the statement mentioned in the plaint secured by any law or statute that doesn’t give any right to the plaintiff to file the suit. The most common example of the same is seen in cases where the plaintiff without following the mandatory requirement of 2-month prior notice under Section 80 CPC [herein, a two month-prior notice is to be given to the government before instituting suit against it], is presented, the same is liable to be rejected.

In Raghwendra Sharan Singh v. Ram Prasanna Singh, SLP (C) No. 20068 of 2013 case, the cause of action had arisen when the plaintiff challenged the gift deed after a period of approximately twenty-two years from the date of the execution of the same. The plaintiff in the case has challenged the gift deed with the allegations that the gift deed is a showy one hence not binding. The Hon’ble Supreme Court after hearing both sides, in view of the facts of the case, held that this suit is unequivocally prohibited by The Law of Limitation. And, the plaint needs to be rejected under Order VII Rule 11 of the Code.

In M/S Frost International Limited v. M/S Milan Developers and Builders (P) Limited, Civil Appeal No. 1689 of 2022 case the Apex Court observed that the plaint which, in essence, sought the relief of injuncting the defendant from instituting criminal prosecution against the plaintiff under Section 138, Negotiable Instruments Act, 1881, is liable to be rejected on the ground that such relief is barred by law under Section 41, Specific Relief Act, 1963.

In Prem Lala Nahata v. Chandi Prasad Sikaria, 2007 (2) SCC 551 case, the Court observed: “Order 7 Rule 11(d) speaks of the suit being barred by any law. According to Black‘s Law Dictionary, ‘bar’ means, a plea arresting a law suit or legal claim. It means as a verb, to prevent by legal objection. According to Ramanatha Aiyar‘s Law Lexicon, ‘bar’ is that which obstructs entry or egress; to exclude from consideration. It is therefore necessary to see whether a suit bad for misjoinder of parties or of causes of action is excluded from consideration or is barred entry for adjudication. As pointed out already, on the scheme of the Code, there is no such prohibition or a prevention at the entry of a suit defective for misjoinder of parties or of causes of action. The Court is still competent to try and decide the suit, though the Court may also be competent to tell the plaintiffs either to elect to proceed at the instance of one of the plaintiffs or to proceed with one of the causes of action. On the scheme of the Code of Civil Procedure, it cannot therefore be held that a suit barred for misjoinder of parties or of causes of action is barred by a law, here the Code. This may be contrasted with the failure to comply with Section 80 of the Code. In a case not covered by sub-Section (2) of Section 80, it is provided in sub-Section (1) of Section 80 that “no suit shall be instituted”. This is therefore a bar to the institution of the suit and that is why Courts have taken the view that in a case where notice under Section 80 of the Code is mandatory, if the averments in the plaint indicate the absence of a notice, the plaint is liable to be rejected. For, in that case, the entertaining of the suit would be barred by Section 80 of the Code. The same would be the position when a suit hit by Section 86 of the Code is filed without pleading the obtaining of consent of the Central Government if the suit is not for rent from a tenant. Not only are there no words of such import in Order 1 or Order 2 but on the other hand, Rule 9 of Order 1, Rules 1 and 3 of Order 1, and Rules 3 and 6 of Order 2 clearly suggest that it is open to the Court to proceed with the suit notwithstanding the defect of misjoinder of parties or misjoinder of causes of action and if the suit results in a decision, the same could not be set aside in appeal, merely on that ground, in view of Section 99 of the Code, unless the conditions of Section 99 are satisfied. Therefore, by no stretch of imagination, can a suit bad for misjoinder of parties or misjoinder of causes of action be held to be barred by any law within the meaning of Order 7 Rule 11(d) of the Code. Thus, when one considers Order 7 Rule 11 of the Code with particular reference to clause (d), it is difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by any law. A procedural objection to the impleading of parties or to the joinder of causes of action or the frame of the suit, could be successfully urged only as a procedural objection which may enable the Court either to permit the continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part of the suit or even to try the causes of action joined in the suit as separate suits.”

e) The plaint is not filed in duplicate:

Order IV Rule 1 clearly indicates that for institution of suits the plaint has to be filed in duplicate. According to Order VII Rule 11(e), when a duplicate copy of the plaint is not submitted whereas it is mentioned that it is mandatory to submit the duplicate copy then in that condition plaint is liable to be dismissed. 

f) the plaintiff fails to comply with the provisions of Rule 9.

Plaintiff fails to present requisite copies of the plaint with summons as required by Rule 9. It means the plaintiff is under obligation to present copies of plaint for ach defendants and requisite fees for summons within 7 days.

g) Other Grounds of Rejection:

The grounds provided in the rule are not exhaustive i.e., the court may always evolve certain other defects in the plaint that may lead to its rejection. For e.g., the non-service of notice under Section 80 of CPC and the plaint being instituted in one such defect.

In Mayar H.K. Ltd. v. Owner and Parties Vessel M.V. Fortune Express, AIR 2006 SC 1828 case, the Court held that grounds of rejection of plaint specified in Rule 11 are not exhaustive. A plaint can be rejected on other relative grounds also. Where the plaint is found to be vexatious or meritless, not disclosing a clear right to sue, the court may reject the plaint.

Procedure of Rejection of Plaint:

According to Order VII Rule 12, where a Plaint is rejected, the Judge shall record an order to that effect with the reasons for such order. Thus, it states the procedure on rejecting the plaint so that it can be used as a precedent for future cases. 

In Parukutty Amma v. Ramaunni, AIR 1966 Ker 150 case, the Court held that the language provided in the Code is mandatory and if the court does not make an order regarding the same, the plaint will still be deemed to be on record of the Court.

In Bibhas Mohan Mukherjee v. Hari Charan Banerjee, AIR 1961 Cal 491 case, the Court held that an Order rejecting a plaint is a decree and hence it is applicable and binding in other cases which involves the rejection of the plaint. 

Under Order VII Rule 13 of C.P.C lays down that rejection of the plaint does not stop the presentation or filling of the fresh plaint. The rule provides for the consequence or a remedy for the order of rejection, wherein the plaintiff is allowed to institute a fresh plaint in respect of the same cause of action in the proper court subject to limitation. Therefore, although being a decree, Res-Judicata does not apply on such orders. Thus, the rejection of plaint being a deemed decree, the plaintiff has two remedies in case of rejection of plaint which are as follows

a) It is a decree and thus appealable under Order 41.

b) Plaintiff may bring a fresh suit in respect of same cause of action.

In Meera Sinha v. Girija Sinha, AIR 2009 Pat 19 case, the Court held that an order rejection a plaint under Order VII Rule 11 of the Code is a decree and such a decree is not revisable under Section 115 of the Code but is appealable under Section 96 of the Code.

Difference Between Dismissal of the suit and Rejection of the plaint:

Conclusion:

The real object of Order 7, Rule 11 of the Code is to keep out of Courts irresponsible law suits.  Every suit presupposes the existence of a cause of action. If there is no cause of action, the plaint has to be rejected [Rule 11(a) of Order VII]. 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.

The post Rejection of Plaint appeared first on The Fact Factor.

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:

1. The court must intimate the plaintiff through registered post or any authorized manner that the plaint is to be returned for lack of jurisdiction.
2. The plaintiff needs to appear before the court either personally or through his counsel
3. 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.
4. The court may fix the date of appearance of plaintiff and defendant before the competent court where the new plaint is to be filed.
5. 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.
6. 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.

The post Return of Plaint by the Court (Order VII Rules 10, 10A and 10B) appeared first on The Fact Factor.

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 Rule 9 of the Civil Procedure Code, deals with the admission of plaint.

A plaint, along with a copy thereof for the purpose of drawing up of a decree at the relevant stage, may be presented at any time during the Court hours to the Clerk of the Court or to such Officer as the Court appoints in this behalf under Order IV, Rule Civil Procedure Code, or in the absence of such Officer, to the Judge himself. Immediately after it is presented, the date of presentation shall be endorsed thereon and an acknowledgement thereof shall be given to the party or Advocate presenting it.

Note 1: If a plaint is presented beyond Court hours, it will be in the discretion of the Judge to accept it or not.

Note 2: The officer receiving the plaint is forbidden to refuse to receive plaints, applications, etc., presented to him, on the ground that he is not able, at that time, to check them.

If there are more than one plaintiff who were permitted to file suit but only few of them instituted the suit and remaining joined afterwards, then the suit should be deemed to be instituted on the date of the initial presentation of the plaint.

In Madhaorao v. Mohanlal, AIR 1922 Nag 167 case, the Court held that if a plaint is presented at the residence of Judge after Court hours it is valid.

The next step is the examination of the plaint in order to determine whether it should be admitted; or rejected (Order VII Rule 11); or returned for the presentation to the proper Court (Order VII Rule 10) or after strictly following the procedure envisaged in new Rule 10-A, Order VII of Civil Procedure Code, as amended by Act, 104 of 1976 or returned for amendment on the ground that it is not framed as required by the law.

Examination of the Plaint Before Admission by the Court:

On the presentation or receipt of a plaint, the Court should examine it with special reference to the following points:

1. whether the plaint contains the particulars specified in Order VII, Rule 1, and conforms to the other rules of pleadings in Orders VI and VII and rules made by the High Court thereunder;
2. whether the plaintiff has filed the names and address of the parties in the prescribed form in the Title;
3. whether the plaint is duly signed and verified (Order VI Rules 14 and 15);
4. whether it complies with the requirements of Order VII Rules 2, 4, and 6;
5. whether it is properly valued and stamped;
6. if the suit is with respect to agricultural land, then whether a certified copy of extract of Record of Rights is produced or not or when the suit is for immovable property other than agricultural land, then whether extract of City Survey is produced or not;
7. whether the provisions of Order II, Rules 4 and 5 are infringed.
8. whether necessary court fees have been paid;
9. whether necessary postal service charges for service of summons on defendants is paid;
10. whether the plaintiff has attached documents related to suits in his possession and powers to the plaint (if any) accompanied by lists in the prescribed form and are in order;
11. whether the plaintiff has stated in his plaint regarding the documents on which he relates his claim and are not in his possession and a statement in whose possession or power they are;
12. whether the grounds disclosing how the suit claim is within limitation are pleaded properly;
13. whether the suit is within the jurisdiction of the Court or must be returned for presentation to proper Court (Order VII, Rule 10);
14. whether the provisions of Rules 2 and 4 of Order III as to production of a power of attorney and Vakalatnama with the plaint are complied with or not.
15. whether the plaintiff has filed a proceeding containing his address for service during the litigation as required by Rule 19 of Order VII, Order Vi Rule 14-A;
16. whether there is prima facie, any non-joinder or mis-joinder of parties, or mis-joinder of causes of action;
17. whether any of the parties to the suit are minors and, if so, whether they are properly represented;
18. whether the plaint is liable to be rejected for any of the reasons given in Order VII, Rule 11;
19. in money suits, whether the plaintiff has stated the precise amount he claims;
20. whether local jurisdiction and pecuniary Jurisdiction of the filing Court is as per rules.

Order VII Rule 9 provides for the admission of plaint. It states that 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.

It simply requires the plaintiff to file copies of the plaint and pay requisite court fees for the service of summons and the defendants within 7 days. The chief ministerial officer of the Court shall sign such list and copies or statements if, on examination, he finds them to be correct.

Conclusion:

The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it. On admission of plaint the plaintiff shall present, within such time as may be fixed by the Court or extended by it from time to time, as many copies on plain paper of the plaint as there are defendants, unless the Court by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason, permits him present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements.

The post Admission of Plaint (Order VII Rule 9) appeared first on The Fact Factor.

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 of the Civil Procedure Code, 1907, lays down rules relating to plaint. Rules 1-8 of Order VII deals with particular required in a plaint.

Contents of a Plaint Order VII Rules 1-8:

Heading and Title:

Rule 1 of Order VII lays down that a plaint must contain certain particulars required to be stated in the plaint:

1. Name of the court (For e. g. in the Matter of Civil Judge Junior Division) in which the matter is to be tried [Rule 1(a)]:

The name of the court should be written on the plaint as the heading. It is not necessary to mention the name of the presiding officer of the court. The name of the Court is sufficient, For example: – 

In the Court of the District Judge, Rajkot.

In the Judicature of Bombay High Court

2. The name, description and place of residence of plaintiff [Rule 1(b)]:

3.The name, description and place of residence of defendant [Rule 1(c)]:

• There must be two parties in every suit, namely, the plaintiff and the defendant. However, there may be more than one plaintiff, and defendant.  
• All particulars of the parties such as name, residence, father’s name, age, etc. which are necessary to identify the parties, must be stated in the plaint.
• In the case of more than one party, all of their names have to be mentioned in the plaint according to their pleadings.  
• When a plaintiff has some defects or problems in health or any type of disability, the Plaint should contain a statement of these effects. 

In Shantadurga Temple v. M F Jose, AIR 1976 Goa 54 case, the Court held that where full particulars regarding a defendant are not known to the plaintiff, an insufficient or even improper description does not make the plaint defective.

4. Title of Suit:

The title of the suit contains the reasons for approaching the court and the jurisdiction before which the plaint is initiated. Title of suit does not decide the jurisdiction.

Body of Plaint:

It is the body of the plaint wherein the plaintiff describes his/her concerns in an elaborative manner. That should be divided into short paragraphs, which each contains one fact. Body of the plaint decides jurisdiction.

The body is divided into two further parts which are as follows:

Formal Part:

5.The cause of action (Pleadings) [Rule 1(e)]:

• Plaint should contain the facts due to which cause of action arises and where the cause of action arises it should also be mentioned. The cause of action is an act, action, or omission, that gives rise to the institution of a suit.

In Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 case, the Court held that even though the expression “cause of action” has not been defined in the Code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed”.

In Purushottam Haridas & Company v. Amruth Ghee Co. Ltd., AIR 1961 AP 143 case, the Court held that it is only necessary to state the facts constituting the cause of action and not legal effect thereof.

In Kuldeep Singh v. Ganpat Lal, AIR 1996 SC 729 case, the Court observed: “The object underlying Order VII Rule (1) (e) which requires that the plaint shall contain the particulars about the facts constituting the cause of action and when it arose, is to enable the court to find out whether the plaint discloses the cause of action because the plaint is liable to be rejected under Order VII Rule 11 CPC if it does not disclose the cause of action. “

In A.B.C. Laminart (P) Ltd. v. A.P. Agencies (1989) 2 SCC 163 case, the supreme court held that A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a fight to immediate judgment must be part of the cause of action.

• It is necessary for every plaint to contain the date when the cause of action arose. The primary objective behind this is to determine the period of limitation.

In Kuldeep Singh v. Ganpat Lal, AIR 1996 SC 729 case, the Court observed: “The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help the court in ascertaining whether the suit is not barred by limitation. Any error on the part of the plaintiff in indicating the date on which the cause of action arose would be of little consequence if the cause of action had arisen on the date on which the suit was filed and the suit was within limitation from the said date. The error in mentioning the date on which the cause of action had arisen in the plaint in such a case would not disentitle the plaintiff from seeking relief from the court in the suit.”

• Plaint should not only mention facts due to which cause of action arises but also those facts which help in recognizing the jurisdiction.

In Ramprasad v. Hazarimull, AIR 1931 Cal 458 case, the Court held that if the plaintiff relies on the defendant’s residence or place of business as giving jurisdiction, the facts showing this must be stated in the body of the plaint.

In Tilak Raj v. Prithipal singh, AIR 1961 J & K 61 case, the Court held that the plaint must aver all the facts showing how the court has jurisdiction.

• In the case of minors, a minor cannot sue nor be sued. If one of the parties is a minor or of unsound mind, it will have to be mentioned in the cause title [Rule 1(d)].  
• The value of the subject matter of the suit must be stated properly for the purpose of the pecuniary jurisdiction of the court and court fees [Rule 1(i)].

In Bai Radha Bai v. Nandlal, AIR 1956 Bom 649 case, the Court held that the decision of the court on the question of jurisdiction must rest on the substantive relief to which the plaintiff is entitled to on the facts alleged by him and not on the prayer which he has chosen to make in the plaint.

• Where the subject matter is an immovable property, a description of the property sufficient to identify the same. In such case the property can be identified by boundaries or numbers in record of settlement or survey, the plaint shall specify such boundaries or numbers. [Rule 3]

In S. Nagraj v. Kalluramma, AIR 1996 Kant 1235 case, the Court held that the description of the property in suit given in the plaint must be sufficient to identify the property. If independently of the boundaries, the property can be sufficiently identified, then any error of misdescription of the boundaries cannot affect either the suit or the decree passed in the suit.

• If the suit is filed in representative capacity, the fact showing that the plaintiff has an actual existing interest in the subject matter and he has taken steps that may be necessary to enable him to file such a suit [Rule 4]
• The reasons why the plaintiff wants to claim exemptions under the law if the suit is initiated after the period of limitation. [Rule 6] The court may grant exemption on such grounds if it thinks fit. However, the court is also free to grant such exemption on any other ground not mentioned in the plaint but raised by the plaintiff, if such ground raised does not destroy the ground in the plaint.

Substantial portion:

• In this portion, plaint must contain all the necessary and vital facts, which constitute the suit. If the plaintiff wishes to pursue a course of action on any other grounds must be duly mentioned.
• It should be shown in the plaint that the defendant is interested in the subject matter and therefore must be called upon by the court.
• Where the defendants are more than one and if the liability is not joint, then the individual liability of each and every defendant must be shown separately.
• In the same way, if there is more than one plaintiff and their cause of action is not joint, then too, the same has to be mentioned separately.

In Ramprasad v. Hazarimull, AIR 1931 Cal 458 case, the Court observed that the plaintiff must give such particulars as will enable the defendant and the court to ascertain from the plaint whether in fact and in law, the cause of action did arise as alleged or not. The plaintiff’s mere statement that it did arise or that he has good cause of action is useless for this purpose.

In Corpn of the City of Banglore v. M. Papaiah, (1989) 3 SCC 612 case, the Court held that for deciding the nature of the suit, the entire plaint has to be read and not merely the relief portion.   

6.Facts showing that the court has jurisdiction [Rule 1(f)]:

The plaint must state all the facts showing how the court has pecuniary and territorial jurisdiction over the subject-matter of the suit.

7. Relief claimed by the Plaintiff, simply or in alternative [Rule 1(g), 7 & 8],

Every plaint must state specifically the relief claimed by the plaintiff either simply or in the alternative. It is the last part of the plaint. It must be claimed properly and accurately. Every plaint must state specifically the kind of relief asked for, be it in the form of damages, specific performance or injunction or damages of any other kind. This must be done with utmost carefulness because the claims in the plaint cannot be backed by oral pleadings. General relief or any relief that the court may grant on its own discretion may not be specifically asked for.

In a money suit, as a general rule, where the plaintiff seeks for recovery of specific amount, the precise amount must be stated in the plaint. However, when the plaintiff sues for mesne profits or for unsettled accounts or for movables where the value cannot be estimated by due diligence, the approximate amount may be claimed in the plaint. [Rule 2]

In Shivisingh v. Harijiram, AIR 1957 Raj 39 case, the Court held that, in a suit for damage, the plaintiff must state the amount of damages claimed and pay court fee thereon.

In Raghu Mahton v. Bulak Mahton, (1953) AP 289 case, the Court held that a claim for past mesne profits must be valued even though approximately and court fee paid thereon. But it is not necessary that future mesne profits should be valued.

In N. K. Rajendra Mohan v. Thirvamadi Rubber Co. Ltd., AIR 2015 SC 2556 case, the Court held that where an issue is not referred to in plaint and plaintiff’s plea was based on it which lacked foundation in the plaint, is not required to be entertained.

In Pitambar v. Ram Joy, (1867) 7 WR 93 case, the Court held that where a plaint asks for more than what plaintiff is entitled to, the court may give him only as much relief as he is entitled to; but the suit must not be dismissed.

It is to be noted that, where a plaint asks for less than what plaintiff is entitled to, the court cannot give him relief in excess of the plaint, unless the plaint is amended before judgment.

In Ravinder Singh v. Shyam Lal, AIR 1984 P & H 145 case, the Court observed that under the system of pleading hereto followed in India, it was usual to add in the plaint a prayer for general relief called the general prayer which run thus: “The plaintiff claims such further or other re3lief as the nature of case may require”. The Court held that under the present rule it is no longer necessary specifically to ask for such relief. Such relief may now always be given to the same extent as if it had been asked for, provided it is not inconsistent with that specifically claimed, and with its case raised by the pleadings.

In Malathi Ravi M.D. v. B.V. Ravi M.D., (2014) 7 SCC 640 case, where a ground of mental cruelty was not taken in the relief clause obtaining divorce, but was discernible from undisputed material brought on record, the Supreme Court exercising its power under Article 142 granted divorce on the ground of mental cruelty.

In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 case, the Supreme Court held that The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.

8. Where the Plaintiff has allowed set-off or relinquished a portion of his claim, the amount so relinquished [Rule 1(h)],

When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that amount which has been so allowed.  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 plaintiffs claimed. [Rule 5]

At last, the content that should be on plaint is the plaintiff verification on oath. The verification can only be done before a competent court or in front of an Oath Commissioner. 

In Salem Advocate Bar Association, T. N. vs Union of India, AIR 2005 SC 3353, case the Court held that the affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof.  

Format of plaint:

IN THE CIVIL COURT  AT  RAJKOT

Suit No. 166 of 2021

Ajay Mehta

A 106, Gandhi Nagar, Rajkot                                         

……… Plaintiff

V.

Ramesh Chandela

Gandhi Nagar, Rajkot                                                     

…….. Defendant 

Suit for the Injunction On the use of Unused land as a dumping area

The Plaintiff submitted as under:

• The plaintiff is a resident of Gandhi Nagar, Rajkot, and the Defendant is a neighbour of the plaintiff.
• Unused land is near the house of the plaintiff, which is used by the resident of A104 i.e. defendant as a dumping yard for the waste material of his house.
• That the Defendant was all the time throwing the waste material in that unused land near the house of the plaintiff.
• Since a very long time of being used as a dumping yard by the defendant, there is a collection of huge waste material that leads to the health problem of the plaintiff.
• That the court has jurisdiction on this matter to fix an injunction on the use of unused land as a dumping area as it restricts his free movement and also leads to affect health due to defendant action.

Prayer:

• It is Prayed that a decree for the injunction is passed in favour of the plaintiff against the defendant. And some other relief as the court thinks fit.

Place: Gandhi Nagar                                                          Date: 04/02/2021 

sd/-

(Ajay Mehta)

Verification:

In the above-named plaintiff do hereby verify that the contents of the paras no. 1,2,3 and 4 are true to my knowledge and the contents of remaining paras are according to legal advice from my advocate which I believe to be true.

Place: Gandhi Nagar 

Date: 04/11/2021                                                                            

s/d of Plaintiff

(Ajay Mehta)

Conclusion:

Section 26 of the Code of Civil Procedure, 1908, states “Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.” This section clearly shows that plaint is very much necessary for the establishment of a suit before the civil or commercial court. This shows that the plaint is a necessary component for the successful initiation of suits in commercial or civil courts and plays a very important role throughout the suit. It must contain all the details prescribed in the Order VII Rules 1 to 8.

The post Plaint appeared first on The Fact Factor.

All plaints, petitions, applications and documents including application for leave to sue in forma paupris shall be presented by the plaintiff, petitioner applicant, defendant or respondent in person or by his duly authorized agent or by an advocate duly appointed by him for the purpose, at the filing counter. All such documents filed in Court shall be accompanied by an index in duplicate containing their details. The amounts of Court-fee affixed or paid on any such document shall also be indicated in the index. Sufficient number of copies of the plaint, petition or application shall also be filed for service on the opposite party. In this article, we shall discuss Order VII Rule 14

Order VII Rule 14: Production of document on which plaintiff sues or relies:

1. Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or 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, where 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 plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.

Order VII Rule 14 is restricted in application to the documents which are either the basis of the claim or which relied upon by plaintiff for supporting his claim.

In Jetha ram v. Shaker Lal, AIR 2000 Raj 34 case, the Court observed that so far as the right of plaintiff to make use of document only for purpose of impeaching the testimony of a witness is concerned, such appear does not appear to be taken away by Rule 14 or 18 of Order VII.

Sub-Rule (1) of Rule 14 provides that where a plaintiff sues upon a document in his possession or power in support of his claim, he shall enter such document 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. This provision is a time saving step as it directs the plaintiff to file his document at the time of presentation of plaint and in case he fails to do that the same shall not be taken in evidence without the leave of the Court under Sub-Rule (3) of Rule 14. However, this rule does not empower the Court to deal with situation where, for special reasons, the plaintiff has failed to file a document with a plaint.

Sub-Rule (2) of Rule 14 provides that where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

Sub-Rule (3) of Rule 14 thereof clearly provides that 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. When the Court in its discretion grant leave after production of such documents in the court, then the order of Court in this regard has to be speaking and reasoned.

In Mohanraj Rupchand Jain v. Kewalchand Hastimal Jain AIR 2007 Bom 69 case the Court held that nothing prevents the Court in its discretion to grant leave subsequent to the documents being produced before the Court even though such documents were not entered in the list annexed to the plaint. It would depend upon the facts of each case. Undoubtedly, the order of the Court in that regard will have to be a speaking and reasoned order.

Sub-Rule (4) of Rule 14 thereof provides that nothing in the said Rule shall apply to document produced for the cross-examination of the plaintiff‘s witnesses, or, handed over to a witness merely to refresh his memory.

Sub-Rule (4) of Rule 14 is similar to clause 2 of Rule 18 Order VII, which was omitted by Amendment Act 46 of 1999, a mistake appears to have crept into the Act 46 of 1999 whereas instead of defendant’s witness, the word plaintiff’s witness has been used in Sub-Rule (4) of Rule 14.

In Salem Advocate Bar Association Tamil Nadu v. Union of India, AIR 2005 SC 3353 case, the Supreme Court held that the words ‘plantiff’s witness’ should be read as ‘defendant’s witness’ till the legislature corrects the mistake . The Court observed “Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under Order VIII Rule 1A(4) a document not produced by defendant can be confronted to the plaintiff’s witness during cross-examination. Similarly, the plaintiff can also confront the defendant’s witness with a document during cross-examination. By mistake, instead of ‘defendant’s witnesses’, the words ‘plaintiff’s witnesses’ have been mentioned in Order VII Rule (4). To avoid any confusion, we direct that till the legislature corrects the mistake, the words ‘plaintiff’s witnesses, would be read as ‘defendant’s witnesses’ in Order VII Rule 4. We, however, hope that the mistake would be expeditiously corrected by the legislature.”

Similar to Order VII Rule 14 is similar to the provision under the sub clause (3) of Rule 1 of the Order 13 of the Code. It lays down that the parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. Being so, it cannot be disputed that if the plaintiff fails to mention the documents in the list annexed to the plaint and to place on record a copy of such document, which is required to be produced under the law at the time of filing of the plaint, the plaintiff is not entitled to produce any additional document thereafter, without the leave of the Court. The contention that such leave has necessarily to be obtained prior to the documents being placed on record, cannot be found fault with.  Failure to produce document may result in rejection of plaint.

Conclusion:

When a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. 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. Nothing in this Rule shall apply to document produced for the cross-examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory. In RDB Two Thousand Plus Ltd. v. Sarvideo, AIR 2000 Cal 107 case, the Court held that the question whether the document annexed to the plaint and averment made to that extent to the plaint is factually correct or not is the subject matter of the suit which cannot be decided at the initial stage of filing of plaint.

The post Documents required along-with the plaint (Order VII Rule 14) appeared first on The Fact Factor.

The Civil Procedure Code, 1908, does not define the term jurisdiction. In fact, none of the substantive or procedural laws seeks to define the term “jurisdiction”. The term “jurisdiction” is derived from two Latin words “ juris” and “ dicto” which means “I speak by the law”. The Black‘s Law Dictionary defines jurisdiction as: “a Court‘s power to decide a case or issue a decree.”  Jurisdiction means and includes any authority conferred by the law upon the court, tribunal or judge to decide or adjudicate any dispute between the parties or pass judgment or order. Whenever the suit is made before the court the initial issue is to decide whether the court has jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or subject matter jurisdiction then simply the court has the power to deal with any of the cases. If any order passed without jurisdiction, it becomes nullity and not enforceable by law. In this article, we shall discuss jurisdiction of civil courts. consent cannot confer or take away jurisdiction of a court. Sections 15 to 20 of the Code contain detailed provisions relating to jurisdiction of Courts. They regulate forum for the institution of suits. They deal with matters of domestic concern and provide for the multitude of suits which can be brought in different Courts.

In Hirday Nath Roy v. Ram Chandra Barna Sharma, 1920 SCC On Line Cal 85 case, the Calcutta High Court in a full bench judgment explained the term jurisdiction. It stated “… jurisdiction may be defined to be the power of Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a Court has to decide matters presented in a formal way for its decision.”

In Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823 case,  Court observed “if a Court has jurisdiction to try a suit and has authority to pass orders of a particular kind, the (act that it has passed an order which it should not have made in the circumstances of the litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity” (emphasis supplied). From the above discussion it is clear that before a Court can be held to have jurisdiction to decide -a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass, the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.

Extent of Jurisdiction of Civil Court:

A civil court has jurisdiction under Section 9 CPC to try all suits of civil nature unless expressly or impliedly barred. The jurisdiction of civil court under section 9 CPC is very expansive and the statute which excludes such jurisdiction should be strictly interpreted.

Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II: For the purposes of this Section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

Basis of Determination of Jurisdiction of Civil Courts:

As a matter of fact, every suit should be instituted before the court of lowest jurisdiction. In the civil side the Munsiff’s Court is the court of lowest of the jurisdiction. Section 9 of the Civil Procedure Code, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or implied barred. In other words, whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument. The jurisdiction of a co9urt should be normally decided on the basis of the case put forward by the plaintiff in his plaint and not by the defendant in his written statement.

Disputes relating to property, breach of contracts, wrongs committed in money transactions, etc. are categorized as civil wrongs and could be subject to a civil process.

From various decisions of the Hon‘ble Supreme Court, the following general principles relating to jurisdiction of a Civil Court emerge:

• A Civil Court has jurisdiction to try all suits of civil nature unless their cognizance is barred either expressly or impliedly.
• Consent can neither confer nor take away jurisdiction of a Court.
• A decree passed by a Court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.
• There is a distinction between want of jurisdiction and irregular exercise thereof.
• Every Court has inherent power to decide the question of its own jurisdiction.
• The jurisdiction of a Court depends upon the averments made in a plaint and not upon the defence in a written statement.
• For deciding the jurisdiction of a Court, the substance of a matter and not its form is important.
• Every presumption should be made in favour of the jurisdiction of a Civil Court.
• A statute ousting the jurisdiction of a Court must be strictly construed.
• Burden of proof of exclusion of the jurisdiction of a Court is on the party who asserts it.
• Even where jurisdiction of a Civil Court is barred, it can still decide whether the provisions of an Act have been complied with or whether an order was passed de hors the provisions of law

In Sahebgouda vs. Ogeppa, (2003) 6 SCC 151 2 case, the Court held that it is also well settled that a provision of law ousting the jurisdiction of a Civil Court must be strictly construed and onus lies on the party seeking to oust the jurisdiction to establish his right to do so. Court further stated that “Under Section 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust jurisdiction of an ordinary civil curt shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act; that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein….”

In A. R. Antulay v. R. S. Naik, AIR 1988 SC 1531 case, the Court said: “This Court, by its directions, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess….”. The Court further said: ” The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away right to appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal.”

In Abdulla Bin Ali v. Galappa, AIR 1985 SC 577 case, the plaintiff filed a suit in the civil court for declaration of title and for possession and mesne profits treating the defendants as trespassers. The defendant contended that the civil court had no jurisdiction since he was a tenant. Denying the contention of the defendants, the Supreme Court observed: “There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil court and not in the revenue court. … We are, therefore, of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court.

When the plaintiff has multiple options to institute the suit he can choose the jurisdiction as per his convenience.

In Dhannalal v. Kalawatibai & Judicial Academy Jharkhand, 2002 (6) SCC 16 case, the Court held that the Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction, the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a Rule of law excluding access to a forum of plaintiff’s choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.

In Sanker Naryan Potti v. K Sreedevi, 1998(3) SCC 751 case, the Apex Court held that it is obvious that in all types of civil disputes Civil Courts have inherent jurisdiction as per Section 9 of the CPC unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.

In State of A.P. v. Manjeti Laxmi Kantha Rao, AIR 2000 SC 2220 case, the Court held that where a statute gives finality to the orders of the special tribunals, the jurisdiction of the Civil Courts must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.

In Ramesh Gobindram v. Sugra Humayun Mirza Wakf, 2010 (8) SCC 726 case, the Court held that there is a presumption that Civil Court has jurisdiction. Ouster of Civil Court’s jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even where the jurisdiction is sought to be barred under a statute, the Civil Court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or the tribunal acts without jurisdiction.

In Dhruv Green Field LTD. v. Hukam Singh, AIR 2002 SC 2841 case, the Hon‘ble Supreme Court observed that-

1. If there is an express provision in any special Act barring the jurisdiction of a Civil Court to deal with matters specified thereunder the jurisdiction of an ordinary Civil Court shall stand excluded.
2. If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion with regard to the exclusion of jurisdiction of a Civil Court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the Civil Court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the Civil Court cannot be inferred
3. Even in cases where the jurisdiction of a Civil Court is barred expressly or impliedly the Court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.

Kinds of Jurisdiction of Civil Courts:

The Jurisdiction of civil courts can be divided on the basis of subject matter, pecuniary, and territorial.

Subject Matter:

Subject matter jurisdiction decides whether the particular Court in question has the jurisdiction to deal with the subject matter in question. Section 9 and 20 of the Code of Civil Procedure, explains the subject matter jurisdiction. The courts cannot try those cases whose subject is beyond their power of jurisdiction.

There are certain statues which provide a specific jurisdiction. This category is, therefore, relating to the subject matter of the suit without its reference to the pecuniary valuation or a territorial jurisdiction of the subject matter. For Example,

• Under the Rent Act, under old section 28 and new section 33 of Rent Act the rent jurisdiction is prescribed which is Civil Judge, Junior Division at Taluka and District Court. 
• In the case of matrimonial disputes, family court are been established. However, the place where family Court is not established then matrimonial disputes are entertained by Civil Judge, Senior Division. 
• In case of the subject matter related to the company laws the case shall be filed before NCLT Tribunal
• In case of the subject matter related to the environment then the case shall be filed before NGT Tribunal. 
• In case of sold defective good under the Consumer Protection Act, the consumer can file a suit in the District Consumer Redressal Forum and not in any other court or tribunal.

In C.T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997 case, the Court observed that the appropriate form for resolution of an industrial dispute is the forum constituted under Industrial Disputes Act, 1947. Jurisdiction of Civil Court is impliedly barred in such cases.

In Union of India v. Sasi S., AIR 1999 Ker 336 case, the Court held that the Civil Court has jurisdiction to enforce the right of a subscriber under section 7B of the Telegraph Act. The Court further stated that under section 9 of the Code of Civil Procedure, the jurisdiction of Civil Court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that the jurisdiction is taken away.

Pecuniary Jurisdiction:

Section 15 of the civil procedure court provides that every suit shall be instituted in the court of the lowest grade competent to try it. Pecuniary jurisdiction, decides whether the Court can hear a suit of the value of the suit in question. Section 6 of the CPC defines the Pecuniary Jurisdiction. This jurisdiction is based upon the valuation of a subject matter of the suit. The main objective of establishing pecuniary jurisdiction is to prevent the court of a higher level from getting burdened and to provide assistance to the parties. The Bombay High Court has original jurisdiction and small causes court with the jurisdiction up to Rs 50000. So, a suit to obtain Rs 5000 should ideally be dealt with small causes court.

In Karan Singh v. Chaman Paswan, AIR 1954 SC 340 case, the plaintiff filed a suit in the subordinate court involving an amount of  Rs 2950, but the court rejected the case. Later his next appeal was allowed by the High Court, but it ordered him to pay the deficit amount. The appellant contested that the decision of the district court will be a nullity, but the High Court dismissed the claim. Later the Supreme Court confirmed the decision of the High Court declaring that the decision of district court won’t be void.

In Nusli Neville Wadia Vs. Ivory Properties, (2020) 6 SCC 557 case, the Court held that jurisdiction generally means an authority of law to entertain, hear and determine a matter. It is the power to decide rightly or wrongly.

Territorial Jurisdiction:

Section 16 to 20 of C.P.C deals with Territorial jurisdiction of a court. Whereas Section 16 to 18 relates to immovable property and Section 19 deals with suit for compensation for wrongs to persons are movable property. Section 20 of C.P.C is residuary provision and cover all cases not falling under Section 16 to 19.

Territorial jurisdiction of a court is decided after taking into account several factors.

• If the suit is with regard to recovery, rent, partition, sale, redemption, determination of right of immovable property it shall be instituted in the court with in the local limits of whose jurisdiction the property is situated.
• If an immovable property situated within the jurisdiction of different courts, then the suit may be instituted in any court with in the local limits of whose jurisdiction any portion of the property is situated.
• In case of dispute between two or more persons with respect to movable property, business and any other wrong done, the suit may be instituted either at the place where wrong are damaged caused or at the place where defendant (The person who caused the loss) resides.
• In case of a dispute in business, agreement or any other kind of civil dispute, except matrimonial matter, the suit may be instituted either at a place where the defendant resides or carries on business or at a place where the cause of action has arisen, i.e., where the dispute or wrong took place.
• In case of matrimonial dispute, the case may be filed at the place where marriage was solemnized or at the place where opposite party is residing or in the place where husband and wife last resided together or in the place where persons filing the case is residing.

In next few articles, we will discuss pecuniary, subject matter, and territorial jurisdiction in detail.

Conclusion:

Jurisdiction may be defined to be the power of Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a Court has to decide matters presented in a formal way for its decision. A civil court has jurisdiction u/s. 9 CPC to try all suits of civil nature unless expressly or impliedly barred. The jurisdiction of civil court u/s. 9 CPC is very expansive and the statute which excludes such jurisdiction should be strictly interpreted. As a matter of fact, every suit should be instituted before the court of lowest jurisdiction. In case of conflict of jurisdiction, the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a Rule of law excluding access to a forum of plaintiff’s choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.

The Jurisdiction of civil courts can be divided on the basis of subject matter, pecuniary, and territorial. Subject matter jurisdiction decides whether the particular Court in question has the jurisdiction to deal with the subject matter in question. Pecuniary jurisdiction, decides whether the Court can hear a suit of the value of the suit in question.

The post Jurisdiction of Civil Courts appeared first on The Fact Factor.

The term suit has not been defined in the Code. In Pandurang Ramchandra v. Shantibai Ramchandra, AIR 1989 SC 2240, the Supreme Court held that “suit” means a civil proceedings instituted by the presentation of a plaint. According to Section 2(1) of Limitation Act, 1963 ‘Suit’ does not include an appeal or an application. ‘Parties’ is one of the essential of the suit. There must be at least two parties in every suit, namely, the plaintiff and the defendant. However, there may be more than one plaintiff, and defendant.  All particulars of the parties such as name, residence, father’s name, age, etc. which are necessary to identify the parties, must be stated in the plaint. In the case of more than one party, all of their names have to be mentioned in the plaint according to their pleadings. Order-I of the Code deals with the parties to the suit. It also deals with the joinder, misjoinder, non-joinder of parties, addition, deletion of parties and also representative suits.

If the cause of action arises in favour of or against multiple persons then the question of joinder of plaintiff and defendant arises. If the act is done by a single individual against a single individual then the question of joinder of parties does not arise. Here, we essentially deal with joinder of plaintiffs and defendants. The question of joinder of parties is a matter of procedure and not of substantive rights. The primary object of joinder of parties is to bring on record all the persons who are parties to the disputes relating to the subject matter so that dispute may be determined in their presence on merits at the same time without any protraction and to ensure that all suits are decided finally and conclusively. The provisions of [O.I R.1] state as to who may be joined as plaintiffs in a suit. The provisions of [O.I R.3] state as to who may be joined as defendants in a suit.

Who may be joined as Plaintiffs in a suit?

Order I Rule 1 in the Code deals with this question and reads as follows:

Who may be joined as plaintiffs?

All persons may be joined in one suit as plaintiffs where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise.

This rule simply seeks to bring all those persons who have the right to relief in respect of any specific act either jointly or severally or alternatively in one suit who if brings separate suit there will be common question of fact or law would arise in any such suit. For Example: Where A assaults B, B may sue A for tort, as individually affects him. Thus in this case the question of joinder does not arise. The question of joinder of parties arises only when an act is done by two or more persons or it affects two or more persons. Thus, if A assaults B and C, or A and B assaults C or A and B assaults C and D, the question of joinder of parties arises.

In Bullock v. London General Omnibus Co., (1907) 1 KB 264 case, the Court observed that Order 1 deals with the joinder of parties, and to a certain extent, with the joinder of causes of action.

In Stround v. Lawson (1898) QB 44 case, the Court held that both the conditions specified in Order I Rue 1 must be fulfilled to enable two or more persons to join plaintiffs in one suit.

In the Universities of Oxford and Cambridge v. George Gill & Sons, (1899) 1 Ch 55 case, ‘A’ publishes a series of book under the title Oxford and Cambridge Publication so as to induce the belief that books are the publication of Oxford and Cambridge University or either of them. The court held that the two universities may join as plaintiff’s in one suit to restrain A from using the title, because the publication and belief induced are common questions of fact arising out of the same series of transaction. Thus both the conditions of the Order I Rule 1 are satisfied.

1. The right to relief arises out of the same act or transaction.
2. Common question of law or fact will arise in such a case.

In Krishna v. Narsingh Rao, AIR 1973 Bom 358 case, the Court held that only pre-condition arise as to join in one suit as a plaintiffs if the common question of law or fact arose between the plaintiffs.

Power of Court to Order Separate Trials:

O.I R.2 deals with the power of Court to order separate trials and reads as:

Power of Court to order separate trials –

Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or Order separate trials or make such other Order as may be expedient.  

This rule refers to a suit brought by several plaintiffs, in respect of the same act or transaction, but causes of action are so distinct that it is not convenient to dispose them at one trial. In case the Court finds that any joinder of plaintiffs may embarrass or delay the trial in the suit, the court may allow the plaintiffs to elect either to continue or seek separate trials or may itself suo motu order separate trials or may even make such order as may be expedient.

Who will be joined as Defendants?

Order I Rule 3 in the Code deals with this question and reads as follows:

Who may be joined as defendants

All persons may be joined in one suit as defendants where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.

The test on which two or more persons are joined as defendants under O.I R.3 is same as, when two or more persons have joined as plaintiffs under O.I R.1.  When two or more defendants are joined together and the test given under Rule 3 does not satisfy, then the joinder of such defendants and their respective cause of actions, is known as multifariousness of suit.

The plaintiff is dominus litis having domain in suit. He has a right and prerogative to choose and implead in a suit as the defendant, the person against whom he seeks relief. The condition precedent is that the court must be satisfied that the presence of the party to be added would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

In Canara Bank v. Mettalica Industries Ltd., AIR 1997 Bom 296 case, the Court held that the plaintiff is dominus litis and cannot be compelled and forced to implead unwanted and unnecessary parties who are neither necessary nor proper parties for deciding the dispute in the suit.

In State Bank of India v. Krishna Pottery Udyog Ass, AIR 1994 HP 90 case, the Court held that in order that a party may be added as a defendant in the suit, the party should have a legal interest in the subject matter of litigation, i.e. legal interest not as distinguished from an equitable interest, but an interest which law recognizes.

A person who is brought on record as a defendant has all the rights of a defendant under the law and is entitled to put forward his defences to the suit.

Conclusion:

‘Parties’ is one of the essential of the suit. There must be at least two parties in every suit, namely, the plaintiff and the defendant. However, there may be more than one plaintiff, and defendant.  Rule1 of the Code of Civil Procedure deals with the parties to the suit. The provisions of [O.I R.1] state as to who may be joined as plaintiffs in a suit. The provisions of [O.I R.3] state as to who may be joined as defendants in a suit. This rule simply seeks to bring all those persons who have the right to relief in respect of any specific act either jointly or severally or alternatively in one suit who if brings separate suit there will be common question of fact or law would arise in any such suit.

If the cause of action arises in favour of or against multiple persons then the question of joinder of plaintiff and defendant arises. If the act is done by a single individual against a single individual then the question of joinder of parties does not arise. The primary object of joinder of parties is to bring on record all the persons who are parties to the disputes relating to the subject matter so that dispute may be determined in their presence on merits at the same time without any protraction and to ensure that all suits are decided finally and conclusively.

Indian Legal System > Civil Laws > The Code of Civil Procedure > Parties to the Suit (Order I Rules 1 – 3)

The post Parties to the Suit (Order I Rules 1 – 3) appeared first on The Fact Factor.

In this article w shall study the terminology of the code of civil procedure. These are the terms and phrases used in civil proceedings, decree, and judgment.

Abatement of a Suit:

Thus the termination of a suit by operation of the law caused by the death of one of the parties during the pendency of the suit is called the abatement of the suit.

Adjournment of Hearing:

An adjournment of hearing or adjournment of the suit is the postponement of the hearing of the suit to a future date by the Court.

Affidavit:

An affidavit is a declaration of facts, reduced to writing and sworn or affirmed before a person having authority to administer oaths, as for instance, a Magistrate or a Notary Public.

Appeal:

An appeal is a judicial examination of the decision of a lower court by a higher court.

Attachment:

Attachment means restraining or holding some rights over any asset or recoverable amount.

Attachment Before Judgment:

Attachment before judgment is the attachment of property of the defendant when he fails to furnish security to the court, sufficient to satisfy the decree.

Cause of Action:

The cause of action is an act, action, or omission, that gives rise to the institution of a suit.

Caveat:

The caveat is a caution in writing given by an interested party to the court, calling upon the court not to give any relief to another party, without notice or intimation to the party filing the caveat. The person filing a caveat is called a caveator.

Code:

According to Sectio 2(1) of the Civil Procedure Code, 1908, “Code” includes rules.

Commission:

As per the Civil Procedure Code a commission, refers to an authority which is appointed to exercise a power or a direction issued by the Court.

Counter-Claim:

Counter-claim is the cross-claim made by the defendant against the plaintiff and this claim is treated as a plaint filed by the defendant against the plaintiff.

Decree:

According to Sectio 2(2) of the Civil Procedure Code, 1908, “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

Decree Holder or Judgment Creditor:

According to Section 2(3) of the Code of Civil Procedure, 1908, a “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

Defendant:

The litigant against whom the plaintiff has filed suit is called the defendant.

District:

According to Sectio 2(4) of the Civil Procedure Code, 1908, “district” means the local limits of jurisdiction of a principal Civil Court of original jurisdiction(hereinafter called a “District Court”) and includes the local limits of the ordinary civil jurisdiction of a High Court.

Evasive Denials:

When a defendant files a written statement, he must deal with each allegation specifically with each allegation of the plaintiff, that is, he must admit or deny each and every allegation contained in the plaint. If he skips answer to some allegations made by the plaintiff, then it is called evasive denial.

Execution:

The term ‘execution’ refers to the process of enforcing or giving effect to judgment, decree, or order of a court.

Execution of Decree:

Execution of Decree is the enforcement of Decree and Orders of the Court enabling the Decree holder to realize the fruits of decree.

Ex-parte:

An order or a decree is said to be passed ex parte when it is passed after hearing only one side, and not the other.

Ex Parte Decree:

Ex parte decree is a decree passed by a Court on a defendant being absent when the suit is called out for the hearing.

Foreign Court:

According to Section 2(5) of the Civil Procedure Code, 1908, “foreign Court” means a Court situate outside India and rot established or continued by the authority of the Central Government

Foreign Judgment:

According to Section 2(6) of the Civil Procedure Code, 1908, ” foreign judgment ” means the judgment of a foreign Court.

Garnishee:

Garnishee is a person who is a debtor of the judgment debtor.

Garnishee Order:

A garnishee order is an order by which a court can call upon the garnishee not to pay the amount due to the judgment debtor from the garnishee but instead to pay the judgment creditor.

Government Pleader:

According to Section 2(6) of the Civil Procedure Code, 1908, “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader

Indigent Person or Pauper:

An indigent person is one who does not have sufficient means to pay the court fees in respect of the plaint being filed by him.

Injunction:

An injunction is an order of a court calling upon a party to do or to refrain from doing a particular act.

Interpleader suit:

An interpleader suit is one where the real dispute is between the defendants only, and therefore, the defendants “interplead”, that is, they plead against each other, instead of pleading against the plaintiff as in an ordinary suit.

Issues:

The term “issue” means a point of the question in the legal proceedings or issues are material propositions of facts affirmed by one party and denied by the other.

Judge:

According to Section 2(8) of the Code of Civil Procedure, 1908, “Judge” means the presiding officer of a Civil Court.

Judgment:

According to Section 2(9) of the Code of Civil Procedure, 1908, “judgment ” means the statement given by the Judge of the grounds of a decree or order

Judgment Debtor:

According to Section 2(10) of the Code of Civil Procedure, 1908, a “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

Jurisdiction:

Jurisdiction, in law, is the authority of a court to entertain, hear and determine cases (suits or other proceedings). This authority is based on the Constitution.

Jurisdictional Fact:

The existence of a fact which gives authority to a court to try and dispose of a particular legal proceeding is called jurisdictional fact.

Legal Representative:

According to Section 2(11) of the Code of Civil Procedure, 1908, ” legal representative ” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued

Letter of Request or Rogatory Letter:

A letter of request is a letter issued by a court in one country to a court in a foreign country requesting some judicial assistance from the judiciary of that country.

Litigant:

A litigant is a party to a lawsuit. It is a person engaged in a suit or petition before the Court.

Litigation:

Litigation is a judicial proceeding undertaken in court to determine the rights, duties and obligations of parties in dispute.

Mesne Profits:

According to Section 2(12) of the Code of Civil Procedure, 1908, ” mesne profits ” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.

Next Friend of Minor or Guardian ad litem:

The next friend of the minor is that person who files a suit on behalf of a minor.

Order:

According to Section 2(14) of the Code of Civil Procedure, 1908, ” order ” means the formal expression of any decision of a Civil Court which is not a decree.

Petitioner:

In the case where a petition is filed for example say writ petition, then the person filing it is called the petitioner.

Plaint:

A plaint is a statement of claim. It is the document by which a suit is instituted in a court. It contains the grounds on which the assistance of the Court is sought by the plaintiff. It forms part of pleadings before the Court.

Plaintiff:

The litigant who approaches a court of law by filing a suit or other legal proceedings is called the plaintiff.

Pleader:

According to Section 2(15) of the Code of Civil Procedure, 1908, “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.

Pleadings:

The term “Pleadings” as used in the Code refers to the plaint or written statement. They are to be signed and verified as provided in the Code.

Preliminary Decree:

A preliminary decree is that decree given by the court when further proceedings are required before a suit can be completely disposed of.

Precept:

A precept is an order or direction given by the court which passes a decree to any other court competent to execute the decree.

Public Officer:

According to Section 2(17) of the Code of Civil Procedure, 1908,

” public officer ” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of the Indian Civil Service;

(c) every commissioned or gazetted officer in the military naval or air forces of the Union while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty:

Reference:

When the subordinate court in order to take assistance refers the case to the High Court, it is called the reference. The opinion of the High Court can also be sought when the subordinate court has some doubts about the question of law. Reference is always made to the High Court.

Respondent:

The party against whom a petition is filed is called the respondent.

Restitution:

The literal meaning of restitution is an act of restoring a thing to its proper owner.

Review:

“review” is the process of judicial re-examination of a case by the same court and by the same judge who has passed the judgment or order earlier.

Revision:

A revision is said to take place when the High Court calls for the record of any case decided by a subordinate court and passes an appropriate order if the subordinate court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or material irregularity.

Rules:

According to Sectio 2(18) of the Civil Procedure Code, 1908, “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125.

Set-off:

Set-off is a defence available to the defendant in his written statement, by which he seeks to wipe out or reduce the claim of the plaintiff against him.

Share in Corporation:

According to Sectio 2(19) of the Civil Procedure Code, 1908, “share in a corporation” shall be deemed to include stock, debenture stock, debenture bonds.

Summary Suit or Summary Procedure:

A summary suit is a suit where the defendant cannot defend the suit as a matter of right and requires the leave of the court to do so. It is to prevent unreasonable obstruction by the defendant who has no defence.

Summons:

A summons is a document issued by an officer of a court, calling upon the person to whom it is directed to appear before the court or an officer of the court for a particular purpose on a stated date at a stated time.

Written Statement:

A written statement is the reply or defence of the defendant in answer to the plaint or the plaintiff. It constitutes the pleading filed by the defendant.

Indian Legal System > Civil Laws > The Code of Civil Procedure > Terminology of CPC

The post The Terminology of the Code of Civil Procedure appeared first on The Fact Factor.

On the basis of the period for which the injunction is applicable, injunction is classified into two types a) Temporary maintenance and b) Permanent Maintenance. An aggrieved person may seek either temporary or permanent injunctions.

A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the Court. It is provisional. It is regulated by the provisions of Order 39 (rr 1 and 2) of the Code of Civil Procedure, 1908, and maybe granted at any stage of the suit. According to Section 37(1) of the Specific Relief Act, “Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).”

Principles of Ordering Temporary Injunction:

The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles.

In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 and Transmission Corporation of A.P. Ltd. v. Lcanco Kondapilli, (2006) 1 SCC 540 cases, the Court held that before granting the temporary injunction the court must satisfy the following aspects

1.   Whether the plaintiff has a prima facie case?

2.   Whether the plaintiff would suffer irreparable injury if his prayer for a temporary injunction is not granted?

3.   Whether the balance of (in)convenience is in favour of the plaintiff?

These three principles are considered as “triple test” for grant of interim injunction and can be described as “three pillars” on which every order of injunction rests. Let us discuss these three principles in detail.

In Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai (2006) 5 Scale 263 case, the Supreme Court has indicated the salient features of prima facie case as under “The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by the issue of a temporary injunction; (ii) when the need for protection of the plaintiff’s rights is compared with or weighed against the need for protection of the defendant’s rights or likely infringement of the defendant’s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.”

Prima Facie Case:

The first principle (or condition) is that the applicant (plaintiff or defendant) must make out a prima facie case in support of the right claimed by him. The expression “prima facie” means at the first sight or on the first appearance or on the face of it, or sufficient to establish a fact or raise a presumption unless disproved or rebutted. It implies the probability of the plaintiff obtaining the relief on the materials placed before the Court. Prima facie case must precede an order of injunction. Only when a prima facie case is established that the Court will consider other factors. For the case to be prima facie case following conditions must be satisfied:

1.   The Court must be satisfied that there is a bona fide dispute raised by the applicant;

2.   there is an arguable case for trial which needs investigation and a decision on merits and on the facts before the Court; and

3.   there is a probability of the applicant being entitled to the relief claimed by him.

If the facts are not properly pleaded and they have no relation to the relief sought by the plaintiff, then the only possibility is there that such suit would be liable to be dismissed. In such cases no court can come to conclusion that there is a prima facie case in favour of plaintiff.

In Prakash Singh v. State of Haryana 2002 (4) Civil L.J. 71 (P.H.) case, the Court opined that a prima facie case does not mean that the plaintiff should have a cent percent case which will in all probability succeed in the trial. Prima facie case means that the contentions which the plaintiff is raising, require consideration in merit, and are not liable to be rejected summarily.

In Uttara Bank v. Macneill & Kilburn Ltd., 33 DLR  case, the Court observed that the burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour.

In Shiv Shankar Goyal v. Municipal Council, Ajmer, AIR 1997 Raj 176 case, the Court held that every piece of evidence produced by either party has to be taken into consideration deciding the existence of a prima facie case to justify the issuance of a temporary injunction.

In Sanjay Tandon v. Sarabjit Singh, AIR 1997 Del 380 (DB) case, the Court held that while deciding the application under O 39, rr 1 and 2, and to form prima facie view the Court has to see the evidence available on the record.

In Unique Alliance Industries, Goa v. Anupama Agencies, Trichur, AIR 1995 Ker 52 (DB) case, the Court held that the case must be established with sufficient material or proved by affidavit.

In Martin Burn Lt. v. R. N. Banerjee, AIR 1958 SC 79 case, explaining the ambit and scope of connotation “prima facie” the Court observed “a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on record.”

In Kashi Nath Samsthan v. Shrimad Sudhindra Thirtha Swamy, AIR 2012 SC 296 case, the Court held that if the applicant fails to prove prima facie case, he is not entitled to a temporary injunction.

Irreparable Injury:

The second important thing the plaintiff has to prove that he will suffer irreparable injury if the injunction as prayed is not granted, and there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury.

In Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527 case, the Court opined that an injury will be regarded as irreparable where there exists no specific or fixed pecuniary standard for measuring damages.

In American Cyanamid Co. v. Ethicon Ltd., (1975) 2 WLR 316  case, Lord Diplock observed: “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff’s need for such protection must be weighed against the need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies.”

In Multichannel (India) Ltd. Mumbai v. Kavitalaya Productions Pvt. Ltd. Chennai, AIR 1999 Mad 59 case, the court observed that an injunction will not be granted where the plaintiff has a remedy by way of damage. The injury must be irreparable and it must be continuous. By the term ‘irreparable injury’ is meant injury which is substantial and could never be adequately remedied or atoned for by damages, injury which cannot possibly be repaired.

In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336 case, the court observed: ‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before the injunction was refused.

In Mahadeo Savlaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33 case, the Court held that where both sides are exposed to irreparable injury pending trial, the court has to strike a just balance.

Balance of in(Convenience):

The principle of balance of convenience is the third mandatory condition to be satisfied before the order of injunction is issued. The plaintiff should establish that the balance of convenience in the event of withholding the relief of temporary injunction will all event, exceed that of the defendant in case he is restrained. The court should issue an injunction where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the opposite party.

In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336 case the Court observed: ‘Balance of convenience’ means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if a temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then the interlocutory injunction alone should be granted.

Thus it is weighing of inconvenience to the plaintiff if the injunction is not granted with inconvenience to the defendant if the injunction is granted.

In Yogesh Agarwal v. Sri. Rajendra Goyel, 2014(3) ARC 427 case, the Court held that the court must be satisfied that the comparative mischief, hardship or the inconvenience which is likely to be caused to the applicant by refusing injunction will be greater than that which is likely to be caused to the opposite party by granting it.

In Kirloskar Diesel Recon Pvt. Ltd. V. Kirloskar Proprietory Ltd., AIR 1996 Bom 149 case, the Court opined that the principle of balance of convenience applies when the scales are evenly balanced.

In Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd., 2005 (1) CHN 582 case, the Hon’ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of the introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be a proper balance between the parties and the balance cannot be a one-sided affair.

In Media Transasia India Ltd. V. Indian Airlines Ltd., AIR 2003 Del 27 case, where there was an agreement between the plaintiff and the defendant, giving the rights to the plaintiff to circulate their magazine on board of defendant’s airline’s flights. There was no negative covenant forbidding the defendant from other in-flight magazines on its flight. The plaintiff plaint was seeking an injunction order against the defendant to stop the circulation of other magazines on board of defendant’s flights. The Court held that balance of convenience and irreparable injury is not in favour of the plaintiff and rejected the plea of the injunction order.

In Sneh Lata Mathur v. Brij Raj Bahadur, AIR 2003 Del 259 case, where an aged widow lady is prima facie in possession of suit house as established by the documentary evidence and she was dispossessed by practicing deceit, the Court opined that she would suffer irreparable injury if the grant of a mandatory injunction is refused.

Conclusion:

A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the Court. It is provisional. It is regulated by the provisions of Order 39 (rr 1 and 2) of the Code of Civil Procedure, 1908. But the granting of injunction comes under discretionary power of the Court. The Court has to understand the facts under the principles of granting of the temporary injunction and when the facts are such that they satisfy these principles, then only temporary injunction can be ordered by the Court.

In Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276 case, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under: “The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

The post Principles of Ordering Temporary Injunction appeared first on The Fact Factor.

In Mahadev v. Narayan, (1904) 6 Bom. L.R. 123 case, the Court observed that an injunction may take either a negative or positive form. It may require a party to refrain from doing a particular thing or do a particular thing.

Types of Injunction:

On the basis of the period for which the injunction is applicable, the injunction is classified into two types a) Temporary Injunction and b) Permanent Injunction. An aggrieved person may seek either temporary or permanent injunctions.

Temporary Injunction:

A temporary or interim injunction, restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the Court. It is provisional. It is regulated by the provisions of Order 39 (rr 1 and 2) of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit.

The temporary injunction does not mean determination in the favour of the plaintiff but simply shows that there is a substantial question requiring consideration. If the Court after fully going into the matter, finds that the plaintiff is entitled to relief, the temporary injunction will be replaced by a perpetual or permanent injunction.

According to Section 37(1) of the Specific Relief Act, “Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they maybe granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).”

A temporary injunction is of two types, one granted without finally disposing of the application for temporary injunction to operate immediately till the disposal of the said application and other granted while finally disposing of the main application generally till the disposal of suit. The former injunction is generally called ad interim injunction and the latter is called temporary injunction.

The grant or refusal of a temporary injunction is governed by three well established principles:

1. the existence of a prima facie case (The plaintiff has a strong case for trial and on the facts that the plaintiff is very likely to succeed in the suit);
2. the likelihood of irreparable injury (an injury that cannot be adequately compensated for in damages) if the injunction is refused; and
3. that the balance of convenience is in favour of the one seeking such relief. (a showing that inconvenience to the plaintiff if temporary injunction is withheld exceeds the inconvenience to the defendant if he or she is restrained).

In Prem Chand v. Manek Chand, AIR 1997 Raj 198 case, the Court held that the Court has no jurisdiction to grant by way of interim relief what could never be granted in the interim relief in the main suit itself.

In Ajmer Khan v. State of Punjab, AIR 1991 P&H 12 case, the Court held that if a Court has no jurisdiction to entertain the main suit: (i) then it cannot deal with an application of temporary injunction and (ii) it must return or reject the plaint as the case may be.

Permanent Injunction:

A permanent injunction restrains a party forever from doing the specified act and can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit. If the Court after fully going into the matter, finds that the plaintiff is entitled to relief, the temporary injunction if any will be replaced by a perpetual or permanent injunction.

According to Section 37(2) of the Specific Relief Act, “A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.”

Perpetual injunctions are regulated by Ss 55-57 of the Specific Relief Act, 1877.

If the damages do not adequately provide relief or where the injunction would prevent multiplicity of proceedings, the Court may permanently restrain the defendant from continuing an act.

In Ram Baj Singh v. Babulal, AIR 1982 ALL 285 case, where hazardous dust from a brick grinding machine polluted the air of a neighboring medical practitioner’s consulting room, the polluter was permanently restrained from operating the machine.

In Seaward v. Paterson, [1897] 1 Ch 545 case, the plaintiff had obtained a permanent injunction restraining the defendant, his tenant, from interfering with the quiet enjoyment of the plaintiff and other tenants living in the vicinity of the demised premises.

On the basis of the order of injunction (To make to do or to stop to do) injunctions are classified into two types a) Mandatory injunction and b) Prohibitory injunction.

Mandatory Injunction:

Mandatory injunction is an order which requires the defendant to do some positive act. For example, if defendant construct a wall which is obstructing plaintiff’s right of light, then the court ask the defendant to demolish the wall is a mandatory or positive injunction.

Prohibitory Injunction:

Prohibitory injunction is an order which forbids the defendants from doing some act which infringes the lawful rights of plaintiff. For example, if defendant is going to construct a wall which can obstruct plaintiff’s right of light, then the court ask the defendant not to construct the wall is a prohibitory or negative injunction.

A party that fails to obey an injunction:

• faces criminal or civil penalties
• possible budgetary sanctions
• imprisonment
• charged with contempt of the court

Difference Between Stay and Injunction:

Injunction and stay order though synonymous are very different in nature.

Order of Stay:

An order of stay indicates stoppage, arrest, or suspension of judicial proceedings. A stay is made against the execution of a decree to enable the judgment-debtor (the one against the interests of whom the decree has been passed) to appeal to an appellate court against such a decree (Order 21, Rule 26; Order 41, Rule 5 the CPC, 1908). Such an order prohibits commencement of any proceeding for execution of the said decree. An order of stay of proceedings may also be made against a sale (Order 21, Rule 59), in a suit against a corporation (Order 30), in a suit involving a minor (Order 32), interpleader suits (Order 35), summary suits (Order 37), in case of reference to a High Court (Order 46). An order of stay of proceedings is available to the Civil Courts by virtue of their inherent power under Section 151 as well as to the Supreme Court and the High Courts.

Characteristics of the Injunction

To grant an injunction is a discretionary power of the court:

The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles. An injunction should not be granted when it will adversely affect the defendants. Equitable relief should be the basic criteria which should be in the mind of the court while granting the temporary injunction.

In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 case, the Court observed that the grant of an injunction being equitable remedy, it is in the discretion of the Court and such discretion must be exercised in favour of the plaintiff only if the Court is satisfied that, unless the defendant is restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff. The Court grants such relief ex debito justitiate, i.e. to meet the ends of justice.

Injunction is an equitable remedy:

Power to grant an injunction is equitable in nature. It cannot be claimed by any party as “Right” nor a court would grant such relief as “a matter of course”. Hence before granting such relief the court should adhere to equitable principles and can grant only if justice, equity, and good conscience require.

In Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara, AIR 1997 SC 2674 case, the Supreme Court has held that “a temporary injunction can be granted only if the person seeking the injunction has a concluded right, capable of being enforced by way of injunction.”

An injunction can be prayed by any party of the suit:

In Gujarat Bottling Co. Ltd. V. Coca Cola Co., AIR 1995 SC 2372 case, the Court held that it is not the plaintiff alone who can apply for an injunction. A defendant may also make an application for grant of an injunction against plaintiff.

 In Satyabhama Amma v. Vijaya Amma, AIR 1995 Ker 74 case, the Court held that under Order 39, r 1, clause (a) both the plaintiff as well as the defendant can approach the Court for temporary injunction.

An injunction can be issued only to the party of the suit:

In L. D. Meston School Society v.  Kashi Nath, AIR 1951 All 558 case, the Court held that an injunction may be issued only against a party and not against a stranger or a third party.

In Modi entertainment Network v. W.S.G. Cricket PTE Ltd., AIR 2003 SC 1177 case, the Court held that normally, injunction can be granted against persons within the jurisdiction of the Court concerned.

In Varanasaya Sanskrit Vishwavidyalaya v. Rajkishore, AIR 1977 SC 615 case, the Court held that an injunction cannot be issued against a court or judicial officer.

The burden of proof lies on the plaintiff:

In Uttara Bank v. Macneill & Kilburn Ltd., 33 DLR  case, the Court observed that the burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour.

In Multichannel (India) Ltd. Mumbai v. Kavitalaya Productions Pvt. Ltd. Chennai, AIR 1999 Mad 59 case, the court observed that an injunction will not be granted where the plaintiff has a remedy by way of damage. The injury must be irreparable and it must be continuous. By the term ‘irreparable injury’ is meant injury which is substantial and could never be adequately remedied or atoned for by damages, an injury which cannot possibly be repaired.

In Yogesh Agarwal v. Sri. Rajendra Goyel, 2014(3) ARC 427 case, the Court held that the court must be satisfied that the comparative mischief, hardship or the inconvenience which is likely to be caused to the applicant by refusing injunction will be greater than that which is likely to be caused to the opposite party by granting it.

Principles of Granting Injunction:

The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles.

In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 and Transmission Corporation of A.P. Ltd. v. Lcanco Kondapilli, (2006) 1 SCC 540 cases, the Court held that before granting the temporary injunction the court must satisfy the following aspects

1. Whether the plaintiff has a prima facie case?
2. Whether the plaintiff would suffer irreparable injury if his prayer for a temporary injunction is not granted?
3. Whether the balance of (in)convenience is in favour of the plaintiff?

These three principles are considered as “triple test” for grant of interim injunction and can be described as “three pillars” on which every order of injunction rests. Let us discuss these three principles in detail in the next article.

Conclusion:

An injunction is an order of the court gives a direction to a party to the litigation to do or to refrain from doing an act. An injunction looks to the future. An injunction may be temporary or permanent. The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles.

The post Injunction appeared first on The Fact Factor.