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.

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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.

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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.

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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.

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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.

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The right to possession is a sacred right guaranteed to all law-abiding citizens. If the rightful owner is deprived of his possession and at the same time he is deprived of the income he can obtain from such possession, then he should be compensated with damages. In such situation the concept of mesne profits comes into play. Mesne profits are profits to which a person is entitled but from, which he has been kept out by the defendant. Simply ‘Mesne Profits” means rents or profits accruing during the rightful owner’s exclusion from his land and interest accrued on the profit. A claim for mesne profits is usually joined with the action for recovery of the possession of the land. Relevant provision of law concerned with mesne profits are

1. Section 2(12) of C.P.C.
2. Order 2, Rule 4 and order 20 Rule 12 of C.P.C.

Concept of Ownership:

The concept of ownership is one of the fundamental juristic concepts common to all system of law. Ownership is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the ‘owner’ and he has a right of complete control and enjoyment of the object. Ownership consists of an innumerable number of claims, liberties, powers & immunities with regard to the things owned.

According to Austin, “ownership means a right which avails against everyone who is subject to the law conferring right to put thing to user of infinite nature”.

According to Hibbert ownership includes four kinds of rights within itself.

• Right to use a thing;
• Right to exclude others from using the thing;
• Disposing of the thing;
• Right to destroy it.

In Blacks Law Dictionary, ownership has been defined as “collection of rights of rights to use & enjoy property, including the right to transmit it to others”.

Concept of Mesne Profits:

According to Section 2(12) of the Civil Procedure Code, 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.

It is to be noted that this definition explicitly excludes any profit earned due to improvement in the property made by the person in unlawful possession of such property.

Illustration 1:

A is in wrongful possession of B’s house. B has rented some part of this house to some subtenants. Thus depriving A, B is receiving profits from such property. Such profits are known as ‘Mesne Profits’. Hence A has right to claim for the profits which have been received by B from the unlawful possession of the property, together with interest on such profits.

Illustration 2:

‘A’ a trespassers, claims B’s house and collects rents. This is Mesne Profits. He digs a bore-well in the land, constructs a group house and gives it for rent. According to definition of mesne profits given in the Code, mesne profits shall not include profits due to improvements made by the person on the property which is in his wrongful possession. In this case A has done improvement by digging a bore well and constructing a group of house. Hence B can claim for rent collected by A from B’s house as mesne profits but he cannot claim the profits from well and newly constructed group of house as mesne profits.

Illustration 3:

‘A’ (Mortgagee) has mortgaged his property to ‘B’ (Mortgagor). An order of foreclosure of the mortgage and decree of redemption is passed, but ‘B’ does not give possession to ‘A’. Then the profit earned by B using this property or he can earn with due diligence is mesne profits. Hence A has right to claim for the profits which have been received by B from the unlawful possession of the property, together with interest on such profits.

Thus “Mesne profits” are the profits, which the person in wrongful possession actually earned or might have earned with the ordinary diligence.

In Purificacao Fernandes v. Hugo Vincente de Perpetuo Socorro Andhrade, AIR 1985 Bom. 202 case, the Court observed that the Mesne profits are nothing but a compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property.

In Nataraja Achari v. Balambal Ammal, AIR1980 Mad 222 case, taking into consideration the definition of mesne profits provided under Section 2(12) the Madras High Court observed that there are three different types of cases in which question of rights of profits arise:

1. Suit for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits.
2. A suit for partition by one or more tenants in common against others with a claim for account of past or past and future profits.
3. Suits for partition by a member of joint Hindu family with a claim for an account from the manager.

The Court observed, “In the first case, the possession of the defendant not being lawful, the plaintiff is entitled to recover mesne profits such profits being really in the nature of damages. In second case the possession and receipt of profits by the defendant not being wrongful the plaintiffs remedy is to have an account of such profits making all jus allowance in the favour of the collecting tenant in common. In the third case the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past account or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would however, be in the position of the tenant in common from the date of severance in status and his right would have to be worked out on that basis.”

Objects of Mesne profits:

The right to possession is a sacred right guaranteed to all law-abiding citizens. We have to understand that in this case the rightful owner is deprived of his possession and at the same time he is deprived of the income he can obtain from such possession.  The fundamental object of passing Mesne Profit Is to compensate the actual owner of the property for all the loss he has suffered. Thus the mesne profits are compensation paid to the real owner.

In Lucy kochuvareed v. P Mariappa gounder, AIR 1979 SC 1214, the Court observed that the object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even though he was entitled to possession thereof.

Mesne Profits- against whom means profits can be ordered?

Generally, Court can award Mesne Profits against the following persons:

• Tenants in a suit for recovery of possession. (Anderson wright v. Amar Nath Roy, AIR 2005 SC 2457)
• Persons against whom a decree for possession of the immovable property was passed. (Gopal Krishna Pillai v. Meenakshi Ayal, AIR 1967 SC 155)
• Trespass (Sita Ram Lakshmanji v. Dipnarain Mandal, AIR 1977 SC 1870)
• Mortgagors in possession of mortgaged property against whom a decree for foreclosure was passed. (Shiv Kumar Sharma v. Santhosh Kumari, AIR 2008 SC 171)
• Mortgagors in possession of the property after a decree for redemption was passed. (Prabhakaran v. M. Azhagiri Pillai, AIR 2006 SC 1567).

Conditions for Claiming Mesne Profits:

1. There should be a wrongful or unauthorized possession of a property
2. A person possessing the property is getting some profit out of the property or can obtain profit from such property with ordinary diligence.

Wrongful possession of the defendant is the essence of a claim for mesne profits and very foundation of the defendant’s liability therof.

In Mohadei v. Kaliji Birajman, 1969 All LJ 896 case, the Court held that the expression ‘mesne profits’ as defined in Section 2(12) of the Code means those profits which a person in wrongful possession of such property either actually received or might have received with due diligence. It is not always necessary that there should be proof of actual receipt.

It is plaintiff’s responsibility to lead evidence to prove the compensation defendant may have received due to illegal possession. In the absence of such proof the Court may reject the plaint for mesne profits.

In Kishen Kumar Narayandas Jobanputra v. Purushottam Mathuradas Raithatha, 2006 (2) Civil Court cases 600 (Bom) case, where the plaintiff did not lead any evidence, it was held that he was not entitled to claim mense profits.

In Lucy kochuvareed v. P Mariappa gounder, AIR 1979 SC 1214, where the plaintiff is dispossessed by several persons. The Court held that all the trespassers are jointly and severally liable, leaving them to have their respective rights adjusted in a separate suit for contribution, or, may ascertain and apportion the liability of each of them.

What does Mesne Profit Include?

Mesne profit includes theprofits received by him or might have been received by him with ordinary diligence; and the interest on such profits. The rate of interest payable is not fixed and it depends upon the discretion of the court subject to the limitation that it may not exceed 6% per annum. The determination of the amount rests entirely at the discretion of the court and it is difficult to lay down fixed principles which can be applied in every case.

In Mahant Narayana Dossjee Varu vs The Board of Trustees, Tirupati Devasthanam, AIR 1959 AP 64 case, the Court held that under the express terms of the definition, mesne profits are profits received by a person in wrongful possession and they are made up of two items

• The profits received by him or might have been received by him with ordinary diligence; and
• The interest on such profits.

Mesne Profits Includes Interest on Such Profit:

Mense profits includes interest on such profits and interest shall be allowed when computing the mesne profits.

In Mahant Narayana Dasjee Varu v. Tirupathi Devasthanam, AIR 1965 SC 1231 case, the Court observed that the Code of Civil Procedure 1882, for the first time, included interest in the definition of mesne profits. It was rightly done because interest is an integral part of mense profits and has therefore, to be allowed while computing items.

In Kalidas Bakshit v. Saraswati Dasi, AIR 1943 Cal 1 (11) case, the suit was for possession and for mesne profits. After the preliminary decree was passed, there was an enquiry into mesne profits under Order 20, Rule 12, CPC. It was argued that interest should not be awarded. Mitter J. observed: “We do not see why the plaintiff should not get interest. Interest is a part of mesne profits.”

Assessment of Mesne Profit:

In Fateh Chand v. Balkrishna Dass, AIR 1963 Sc 1405 (1412-13) case the Court observed that the mesne profits are in the form of damages, no invariable rule governing their award and assessment in every case can be laid down and the Court may mould it according to the justice of the case.

In Granish vs. Soshi Skildar (MP) case, the court held that the mesne profits are due from the moment possession is wrongfully held by the defendant an interest on such mesne profit is due from the day on which each instilments becomes due. A decree which is salient as to interest must, be taken to mean that mesne profit shall carry interest on them.

In P. L. Kapur v. Jia Rani, AIR 1973 Del 186 case, the Court observed that the criteria for calculation of mesne profits is not what owner loses by reason of deprivation from possession but what trespasser received or might have received with ordinary diligence.

In Sri Ramnik Vallbhdas Madhvani v. Taraben Pravinlal Madhvani, (2004) 1 SCC 497, the Supreme Court held that A mistake has been committed by the High Court in calculation of interest on mesne profits. Interest has to be calculated on yearly basis because the amount of mesne profits on which interest is to be awarded has to be arrived at on year to year basis. It keeps adding on from year to year. Interest cannot be allowed on the whole amount form the beginning. Interest had to be worked out on amounts falling due towards mesne profits on yearly basis i.e. on the amount of mesne profits which could be taken to be due to the plaintiff at the end of each successive year.

In Gray v. Bhagumian, (1939) 57 I.A. 105 case where the person in wrongful possession planted indigo for use in his adjacent factory and it was proved that an ordinary farmer would have grown sugarcane, wheat or tobacco, their Lordships of Privy Council assessed mesne profits on the profits of cultivation of those more profitable crops.

Deductions from Mesne Profits:

The Court must allow the following deductions from the gross profit of the defendant in possession of the property:-

1. The charge for collecting rent, etc.
2. The costs of cultivating and reaping the crops, and
3. Public charges made from the preservation of the property, e.g., Government revenue.

In Dakshina v. Saroda, ILR (1894) 21 Cal 142 (PC) case, the Court held that while awarding mesne profits, the Court may allow deductions to be made from the gross profits of the defendant in wrongful possession of the property, such as land revenue, rent, cesses, cost of cultivation and reaping, the charges incurred for collection of rent, etc. In other words, mense profits should be net profits.

Types of Cases in which Question of Rights of Profit Arises:

1. Suit for ejection  or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne prof
2. A suit for possession by one or more tenants in common against others with a claim for account of past or past and future profits.
3. Suits for possession by number of Joint Hindu Family with a claim for an account from the manager.

Principals to be Applied to Award Mesne Profits:

The Court must apply the following settled principles to award mesne profits:-

1. the profit to be taken into account is that made by a person in wrongful possession;
2. the aim should be restoration of status before dispossession of the Decree-holder;
3. the use to which the decree-holder may have put the property if he himself was in possession is relevant only as evidence of what the defendant might with reasonable diligence have received.

Provisions in the Limitation Act:

The defendant is liable for all mesne profits received by him or which he might with ordinary diligence have received during the 3 years before suit and not before Section 109 of the limitation Act.

Conclusion:

Mesne profits are profits to which a person is entitled but from, which he has been kept out by the defendant. A claim for mesne profits is usually joined with the action for recovery of the possession of the land. The relevant provision of law concerned with mesne profits are a) Section 2(12) of C.P.C. and b) Order 2, Rule 4, and order 20 Rule 12 of C.P.C. The fundamental object of passing Mesne Profit Is to compensate the actual owner of the property for all the losses he has suffered. Mesne profit includes the profits received by him or might have been received by him with ordinary diligence, and the interest on such profits. The criteria for calculation of mesne profits is not what the owner loses by reason of deprivation from possession but what the trespasser received or might have received with ordinary diligence. Mesne profits are in the nature of damages and the right to sue for mesne profit is the right to sue for damages. Such a right cannot be attached and sold in execution of a decree against the person entitled to the decree under section 60.

Indian Legal System > Civil Laws > The Code of Civil Procedure > Mesne Profits

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In this article, we should study the orders which are deemed decrees and the orders which are considered to be deemed decree and the orders which are not a decree.

Deemed Decree:

An adjudication which does not formally fall under the definition of decree stated under section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees.

In East End Dwellings C. ltd. v. Fisbury Borough Council, 1952 AC 109 case, the Court observed that the term ‘deemed’ is generally used to create a statutory fiction for the purpose of extending the meaning which it does not expressly cover.

Order 21, Rule 58(4) declared that the order made under sub-rule (3) “will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree”. Thus, the order is declared to be a ‘deemed decree’ and not a ‘decree’ by itself.
Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an adjudication under Rule 98 and Rule 100 are also deemed decrees.

In CIT v. Bombay Trust Corpn. Ltd., AIR 1930 PC 54 case, the Privy Council stated that the term ‘deemed’ is generally used to create statutory fiction for the purpose of extending the meaning which it does not expressly cover. It further stated that when a person is ‘deemed to be’ something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament or the Legislature requires him to be treated as if he were.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214 (1220) case, the Court observed that whenever the legislature uses the word ‘deemed’ in any statute in relation to a person or thing, it implies that the Legislature, after due consideration, conferred a particular status on a particular person or thing. 

In B. Nukaraju v. MSN Charities, AIR 1994 AP 334 the Court held that Deemed Decrees are not covered by the definition under Section 2(2) namely of ‘decree’ so as to attract the provisions of Section 96 of the Civil Procedure Code and therefore, only a ‘Miscellaneous appeal’ lies against such ‘order’ and not a ‘Regular appeal’.

In Rajan Kakar v. Vijaya Bank, AIR 2008 Del 17 case, where, under the securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002, the borrower approached the Lok Adalat and an award was passed with the consent of the Bank, no further action under the Act can be taken as the award is a deemed decree.

Orders which are decrees:

The following have been held to be decrees within this sub-section:

1. An order under s 24 of the Bombay Money Lenders Act, 1946 granting or refusing to grant instalments for payment of the decretal amount. (State of Bombay v. Narayan Pure, AIR 1960 Bom 334)
2. an order rejecting the application of tenants under s 6 of the West Bengal Premises Rent Control (Amendment) Act, 1950, for rescission of a decree in ejectment. (Gobardan Dutta v. Pramoda, AIR 1953 Cal 412)
3. an order under s 14 of the Religious and Charitable Endowments Act, 1863. (Ram Narain v. Jai Narain, AIR 1961 All 125)
4. an order transmitting a decree to the collector for execution under s 19 of the UP Encumbered Estates Act, 1934 with the information that the debt is reduced. (Chief Inspector of Stamps v. Uggar Sen, AIR 1965 All 298)
5. an order declaring the defendant a debtor under s 3 (c) of the Karnataka Debt Relief Act, 1976, with the consequence that the debt advanced to him stood discharged under s 4 (a) of the Act is a decree. (Kariyaiah v. Puttathayamma, AIR 1977)
6. a modification in a decree is also a decree. (Panneshwar Lal v. Gokula Nandan Prasad, AIR 1984 Pat 344  ( 346-47)).
7. An award under Pt III of the Land Acquisition Act by a civil court is by reason of s 26 of that Act, a decree. (Louis Pascal v. Spl. Land Acq. Officer, (1970) 72 Bom LR 703)
8. An order made in winding up proceedings under the Indian Companies Act, 1956. (Pushpabai v. Offl. Liquidator, AIR 1970 Bom 271)
9. An order setting aside an ex-parte decree is a decree and the plaintiff aggrieved by such an order can appeal against it. (Bhim Rao v. Laxmibai, AIR 1966 Mys 112)
10. The determination of a question under s 47 was expressly included in the definition of a decree, although such determination was not made in a suit and sometimes not drawn up in the form of a decree. (Shakuntala Devi v. Kantal Kumar, AIR 1969 SC 575)
11. It is no longer so in view of deletion of the words s 47 or. A right of appeal had been provided to a party litigant to go up in appeal against an order passed under s 47, before the Amending Act of 1976, by virtue of the legal fiction introduced in the definition of the term decree as including any order passed in the execution proceedings. This right had been taken away by a valid enactment and it no longer survived after the execution was levied on 4 January, 1979, as the Amending Act had already come into force with effect from 1 February, 1977. No appeal would lie against any order passed under s 47 of the Code of Civil Procedure. (Babulal v. Ramesh Babu Gupta, AIR 1990 MP 317)
12. An order modifying a scheme under s 92 of the Code of Civil Procedure 1908, which is part of a decree, constitutes an amendment in decree against which an appeal would lie. (Bhogaraju v. J. Rama Rao v. Board of Commrs for Hindu Religious Endowments, AIR 1965 SC 231)
13. An order rejecting an application for modification of such a scheme. (Shree Kalimata v. R.C. Chatterjee, AIR 1970 Cal 373)
14. An adjudication under s 5 (2) of the Malabar Tenancy Amendment Act, 1956, is in substance the final adjudication of a matter in controversy and is a decree, although the proceedings thereunder were initiated by an application. (Vamanan Nambudiri v. Narayan, AIR 1965 Ker 1)
15. The High Courts of Gujarat and Punjab have taken the view, that adjudications under ss 911 and 13 of the Hindu Marriage Act, 1955, are decrees for the purposes of those provisions only, but are not decrees within the meaning of this sub-section as they are not passed in a suit. (Bai Umiyaben v. Ambalal, AIR 1966 Guj 139)
16. An order rejecting a plaint is a decree and is not revisable under s 115 of the Code but appealable under s 96 of CPC.  (Meera Sinha v. Girja Sinha, AIR 2009 Pat 19)
17. When a criminal case is referred by a criminal court and is settled by the Lok Adalat, its award cannot be executed as a decree passed by a civil court. The reason behind this view is that when a reference is made to Lok Adalat, that authority is exercising the powers enjoyed by the reference court and can only pass such order which the reference court was competent to pass. (K.N .Govindan Kutty Menon v. C.D. Shaji, AIR 2010 Ker 97)

Orders which are not a decree.

The following are instances of orders which are not decrees:

1. An order rejecting an application for leave to sue in forma pauperis for no suit has till then been filed. (Secretary of State v. Jillo, (1899) ILR 21 All 133)
2. An order refusing leave to institute a suit for accounts of religious endowments. (Mozaffer Ali v. Hedayet, (1907) ILR 34 Cal 584)
3. An order on a petition to appoint a new member on the committee of a religious endowment. (Minakshi v. Subramanya, (1888) ILR 11 Mad 26 (35))
4. An order under the Indian Trusts Act, 1882 dismissing an application for the removal of a trustee. (Nathu Wilson v. Mcafee, (1897) ILR 19 All 131)
5. An order on a settlement case under s 104 (2) of the Bengal Tenancy Act 3 of 1898 as the proceeding is instituted not by a plaint but by an application. (Upadhya Thakur v. Persidh Singh, (1896) ILR 23 Cal 723 (729))
6. An order made on an application to the District Court under s 84 (2) of the Madras Hindu Religious Endowments Act 2 of 1927. (Rajagopala v. Hindu Religious Endowments Board, AIR 1934 Mad 103)
7. An order for ejectment in a proceeding under Ch-VII of the Presidency Small Cause Court Act, 1882. (Madhav Prasad v. SG Chandravarkar, AIR 1949 Bom 104)
8. An Award by the Calcutta Improvement Trust Tribunal. (A.K. Hossin v. Province of Bengal, AIR 1942 Cal 569)
9. An order rejecting a petition on the ground that the Madras Act IV of 1938 is not appealable. (Lakshmi Devi v. Raja Rao, (1954) 2 Mad LJ 192)
10. An order under s 7 of the Guardian and Wards Act, 1890 on an application under s 10 of that Act. (Wahid v. Jabida Begum, AIR 1952 Nag 190)
11. An order under s 10 of the Disabled Persons Act, 1951. (Punjab National Bank v. Firm of Iswardas Kaluram, AIR 1957 Raj 146)
12. An order passed on an application made to the Insolvency Court under s s 53 and 54 of the Provincial Insolvency Act, 1920. (Lakshmi Devi v. Varada Reddi 1958 Andh LT 896)
13. An order granting interim relief under s 24 of the Hindu Marriage Act, 1955. (Mansingh v. Siva Prabakumari, AIR 1960 Bom 315)
14. An order passed on an application for restitution of conjugal rights, judicial separation, declaration of nullity of marriage or divorce under ss 9 to 12 respectively of the said Act. (Varalakshmi v. Veera Reddy, AIR 1961 AP 359)
15. An order under s 34 of the Malabar Tenancy Act, (Nicholas v. Yasamma, AIR 1961 AP 359)
16. An order under s 17 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, directing the landlord to restore possession of the premises to the tenant. (Vishnumurthi v. Lakshminarayana, (1961) 63 Bom LR 106)
17. An order passed under s 52 of the Malabar Tenancy Act 33 of 1951 for restoration of a holding. (Choyikutty v. Vasu, (1962) Ker LJ 517)
18. An award by the Debt Board under the Hydrabad Agricultural Debtors Relief Act, 1956. (Dattu Apparao v. D.G. Shengde, AIR 1968 Bom 361)
19. An order passed in proceedings under s 25 of the Guardian and Wards Act. (Kiran Devi v. Abdul Wahid, AIR 1996 All 105)
20. The award given by the motor accident claim tribunal does not have the status of a judgment, decree or order as contemplated by the Code of Civil Procedure. (Oriental Insurance Co. Ltd. v. Sardar Sadhu Singh, AIR 1994 Raj 44 (57))
21. An order refusing to wind up a company is not decree, since such an order does not adjudicate upon any right of a party. (Dundappa v. SG Motor Transport Co., (1966) 1 Mys LJ 786)
22. A decision on a reference under s 49 (1) of the Land Acquisition Act. (Deepchand v. LA Officer, AIR 1975 MP 55)
23. Rejection of application for condonation of delay and consequent dismissal of appeal as time barred. (Ratansingh v. Vijaysingh, AIR 2001 SC 279)
24. Decision of water disputes tribunal as notified. (State of Andhra Pradesh v. State of Karnataka, AIR 2001 SC 1560)
25. Order passed by High Court under contempt proceedings on consent terms. (In Re:Siddharth Srivastava, AIR 2002 Bom 494)
26. Order of dismissal of suit for default or non prosecution is not appealable as a decree. (Firdous Omer v. Bankim Chandra Daw, AIR 2006 SC 2759)

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Definition Clause is a dictionary of the word used in the statute which is useful in interpreting the statute. It gives the meaning of that word or phrase related to the statute. Objects of this clause are to provide for proper interpretation of the enactment and to shorten the language of enacting part.  According to Craies, the word or phrase is defined in two ways restrictively and extensively. When the word ‘mean’ is used in the definition it is used in a restrictive way to restrict the meaning as given in the definition only. While when the word ‘includes’ is used in the definition it is used in an extensive way to broaden the meaning of the word in the statute.

Justice G.P. Singh, in his book on interpretation, has explained it thus: “A definition section may borrow definitions from an earlier Act and the definition so borrowed may not necessarily be in the definition section but may be in some other provisions of the earlier Act. A definition borrowed by incorporation or reference may be sometimes found in the rules made under the referred statute. For example, Article 366(1) of the Constitution defines agricultural income to mean agricultural income as defined for the purpose of enactments relating to Indian Income-tax.”

Section 2 of the Code of Civil Procedure is the Definition Clause. Presently, there are 20 definition clauses in all. We shall study them one by one.

Section 2(1) Code:

“Code” includes rules;

The Code of Civil Procedure has two parts. The main body of the Code is in the Sections and the rules refer to matters of mere machinery which the High Court may adapt to local conditions. Thus Hig Courts are allowed to modify the rules as per circumstances.

In Manekbai Manohar v. M. Deshpande, AIR 1971 Bom 21 case, the Court observed that the body of the Code of Civil Procedure creates a jurisdiction while the rules indicate the mode in which it is to be exercised.

In Lakshmi Kumar v. Krishna Ram, AIR 1950 MB 156 case, the Court opined: “It follows that the body of the Code of Civil Procedure is expressed in more general terms and it has to be read in conjunction with the more particular provisions of the rules.

In Basavayya v. Venkatappiah, AIR 1926 Mad 676 case, the Court held that where there is a clear conflict between the body of the Code of Civil Procedure and the rules, the former must prevail.

Section 2(2) Decree:

“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.

Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.

In Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 (1113) case, the Supreme Court held that in order that a decision of a court to be a “decree” the following elements must be present.

• There must be an adjudication;
• Such adjudication must have been given in a suit;
• It must have determined the rights of the parties with regard to all or any of the matters in dispute in the suit;
• Such determination must be of conclusive nature; and
• There must be a formal expression of such adjudication.

In Bal Kishan v. Tulasi Bai, AIR 1987 MP 120 case, the Court held that order must satisfy the requirements of Section 2(2) in order to become decree. Merely labelling it as a decree does not make it a decree.

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Section 2(3): Decree Holder:

“Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

In Bajirao v. Kashirao, AIR 1978 Bom 350 case, the Court held that a decree-holder is one whose name is inscribed on the decree and in whose favour such decree has been passed.

Section 2(4): District:

“District” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a District Court), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

In Daily Calendar Supplying Bureau v. United Concern, AIR 1967 Mad 381 case, the Court during a discussion on the jurisdiction for the suit, under the Copyright Act, 1957, held that in the absence of such a court having the jurisdiction, a High Court having the ordinary original civil jurisdiction would be deemed to be the District Court.

In Raja Soap Factory v. Shantharaj, AIR 1965 SC 1449 case, the Court held that if a High Court does not possess the ordinary original jurisdiction, it would not, though at the apex of the civil courts, be the District Court for the purpose of the Trade and Merchandise Marks Act 1958.

Section 2(5): Foreign Court:

“Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;

Section 2(6): Foreign Judgment:

“Foreign judgment” means the judgment of a foreign Court;

Section 2(7): Government Pleader:

“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;

The government can have as many government pleaders as it likes. The definition is inclusive. It must be read with O 27, rr 4 and 8B.

In Kanta Kathuria v, Manak, Air 1970 SC 694 (700) case, the Court observed that a person appointed as a special government pleader under O 27, r 8(B) to conduct a particular case specified in the notification appointing him does not hold the office of government pleader.

Section 2(7A): High Court:

“High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

Section 2(7B): India:

“India”, except in sections 1, 29, 43, 44, 44A, 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir.

Section 2(8): Judge:

“Judge” means the presiding officer of a Civil Court;

In Aloo v. Gabubha, ILR 19 Bom 608 case, the Court held that no judge can act in any matter in which he has any pecuniary interest, nor where he has any interest, though not a pecuniary one, sufficient to create a real bias.

In Anand Prakash v. Asst. Registrar Co-op Societies, AIR 1968 All 2 case, the Court held that an Arbitrator is neither a judge nor a court.

Section 2(9): Judgment:

“Judgment” means the statement given by the Judge of the grounds of a decree or order;

Section 2(10): Judgment-debtor:

“judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

In Iaq v. Ramji, (1952) ILR All  618 case, the Court held that the word “judgment-debtor’ as used in this rule has been not to include the legal representative of a deceases judgment-debtor.

In Vijay Raj v. Lal Chand, (1966) ILR Raj 194 case, Court held that surety of judgment-debtor is not himself a judgment-debtor.

Section 2(11): Legal Representative:

“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 issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

In Manjushri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474 case, the Court observed: “According to the definition given in the Code, 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.

Section 2(12): mesne profits:

“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 therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

The main object of awarding mesne profits is to compensate the person entitled to be in possession of the property. The concept of mesne profits is applied due to the wrongful possession of the defendant.

In Mahadei v. Kaliji Birajman, 1969 All LJ 896 case, the Court held that the expression mesne profits as defined in s 2 (12) of the Code means those profits which a person in wrongful possession of such property either actually received or might have received with due diligence. It is not always necessary that there should be proof of actual receipt.

In Kishen Kumar Narandas Jobanputra v. Purushottam Mathurdas Raithatha, 2006 (2) Civil Court Cases 600 (Bom) case, the Court held that for entitling him to grant of mesne profits, the plaintiff must lead evidence to prove what would be the compensation the defendant might have received with due diligence for his wrongful possession. Where the plaintiff did not lead any evidence, it was held that he was not entitled to claim mesne profits.

Section 2(13): Movable Property:

“movable property” includes growing crops;

The definition must be limited to the Code of Civil Procedure, for under s 3 (26) of the General Clauses Act, 1897, standing crops are immovable property.

Section 2(14): Order:

“order” means the formal expression of any decision of a Civil Court which is not a decree;

Section 2(15): Pleader:

“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;

In Re Pleaders of the High Court, (1884) ILR 8 Bom 155 case, the Court observed: “The term pleader is, here, used in a much larger sense than its ordinary signification as a convenient term to designate all persons who are entitled to plead for others in court. Pleader, in its ordinary sense, is synonymous with vakil.

Advoate: An advocate is defined in s 22 (a) of the Bar Councils Act, 1926, as one whose name is entered on the rolls of an advocate of the High Court. An advocate whose name has been removed from the roll is not within this definition.

Section 2(16): Prescribed:

“prescribed” means prescribed by rules;

Section 2(17): Public Officer:

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

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

(a) every Judge;

(b) every member of All India 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 authorised 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;

Section 2(18): Rules:

“rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;

Section 2(19): Share:

“share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds; and

Section 2(20): Signed:

“signed”, save in the case of a judgment or decree, includes stamped.

The definition is wider than in the General Clauses Act, 1897. Indians of rank sometimes use a stamp instead of signing, and the inability to write is not a condition precedent to the use of a stamp. The Madras High Court has observed that there is no provision that initials may be made by a stamp.

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In the last article, we have studied about preliminary decree. In this article, we shall study final decree and partially preliminary and partially final decree.

A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.  Section 2(2) of the Code of Civil Procedure, 1908 defines Decree as follows:-                          

Section 2(2) of the Code of Civil Procedure, 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 section 144 of CPC, 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.

Explanation:

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;

Generally, there are three types of decrees:

1. Preliminary decree
2. Final decree
3. Partly preliminary and partly final.

Final Decree:

A final decree is one which completely disposes of a suit and finally settles all questions in the controversy between parties and nothing further remains to be decided thereafter. Ordinarily there will be only one final decree in the suit. However, where two or more causes of action are joined together there can be more than one final decree.

A decree may be said to be final in two ways,

1. when within prescribed period there has been no appeal filed against the decree or the matter has been decided by the decree of the highest Court, or
2. when the Court passing it completely disposes of the suit.

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court observed: “A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit. Final decree may be said to become final in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of It is in the latter sense the word “decree” is used in, s. 2(2) of CPC.”

In Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198 case the Court observed that “A decree, therefore may denote final sdjudication between the parties and against which appeal lies, but only when a suit is completely disposed of thereby a final decree would come into being. There cannot be any doubt whatsoever that a decree may b partly preliminary and partly final.”

Characteristics of Final Decree:

• Final decree is executable:

In A. Akkukamma v. G. Papi Reddy, AIR 1995 AP 166 case, the Court held that Preliminary decree is a decree within the meaning of s. 2(2) of the Code of Civil procedure, but it is not capable of execution, normally, till a final decree is passed.

• In some suits final decree can be passed without passing a preliminary decree.

In Purushottam Haridas v. Amruth Ghee Co. Ltd., Gunthur, (1960) Andh. LT 524 case, the Court held that even in suits of nature mentioned in O 20, if the matters in dispute are simple and do not require elaborate scrutiny of accounts, the court is not bound to pass preliminary decree and may proceed straightway to pass a decree for the amount determined as due.

• It settles matter in controversy:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court observed that until the final decree is passed, there is “no formal expression” of the court that conclusively settles all the issues in the case.

• It carries fulfilment of the primary decree:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court held that the final decree merely carries into fulfilment the preliminary decree.

• Court can pass more than one final decree:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court held that it is settled law that more than one final decree can be passed.

Partly preliminary and partly final

A decree may be partly preliminary and partly final and this may be explained by way of example.

For example, two brothers argue over who inherits the family property from their late father. This property is currently leased out to a family. While the determination of who gets the property is the subject of the final decree, the determination of who gets the profits that accrue from the lease rent being paid during the length of the trial, is a matter of partly preliminary and partly final decree.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214 (1220) case, in a suit for possession of immovable property with mense profits, where the court (a) decides possession of the property; and (b) directs an enquiry into mense profits. The Court observed that the former part of decree is final, while the latter part is only preliminary because the final decree of mense profits can be drawn only after enquiry, and the amount due is ascertained. In such a case, even though the decree is only one, it is partially preliminary and partially final.

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