Bar of suit and maintainability of suit

Or. VII rule 11 (d) of the Code of Civil Procedure says that "the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law." Make this statement further clear by adding words 'that it is barred to be heard by civil court. This is the spirit of the provision of Or. VII R. 11 of the CPC.  Most of the persons from judiciary fail to understand the substance of this provision.   A suit is said to be barred by any law when we say that   civil court has no jurisdiction at all to hear a case. For example a special law declares a forum and according to that forum if a civil court has been barred to hear any dispute under that law then it is a bar created by any law for the time being in force. In this respect Sec. 9 of the CPC will make the point very clear.  Therefore to under the said provision that is Or. VII R.11 (d) one has to read that provision like this:   plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law for the time being in force to be heard by a civil court. Thus bar is created as to the jurisdiction of the court with reference to Sec. 9 of the CPC.

Thus for example a suit for declaration that plaintiff is entitled to ply buses on a particular line is not maintainable as the special law relating to Motor Vehicles Act provide some other forum and civil court's jurisdiction is barred to hear such suit. There may be several-myriad example where bar to hear cases by civil courts is created. Under Income Tax Act, sales Tax  Act, elections to Parliament or state Assemblies or President's or Vice President's elections etc. etc. Here a suit is barred by law for the time being in force to be tried by a civil court.

A case under   Indian Guardians and wards act is to be tried by Principal Court of Civil Jurisdiction or by a civil court if specially empowered under this Act by a notification. A case under Hindu Marriage Act can only be tried by a principal court of civil jurisdiction that is by district court and not by   civil judge class I or Class II. But in all these case civil courts jurisdiction is not barred.

On perusal of a case of Smt. GangaBai Vs. Vijay Kumar and others  AIR 1974 SC 1126 it will reveal that a time bar suit can also be instituted as no law says that a time bar suit cannot be instituted.  In that case in para it was said that there is an inherent right in every person to bring a suit of a civil nature and unless a suit is be a statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeal is quite opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the fight of appeal is described as a creature of statute. In this respect another case of Hardesh Ores P. Ltd. Vs.  Hede and company, 2008 (I) MPLJ 30. (SC) is worth studying. The ratio of the judgment was followed by Gujarat High Court in the case of    Himanshu Madanlal Shah Vs. B.M. Poojari, FA No. 1516/2005 decided on 22-09-2005 A party instituting a suit may face the consequences but certainly thee is no bar of filing a suit.   What is necessary is bar to institute a suit in a civil court if a statute prohibits so. Thus a plaintiff files a suit for partition of some of the properties in a civil court such suit is certainly not barred by any law for the time being in force. A suit for partition is definitely taxable by a civil court. Question may arise as to maintainability of suit for partition of some properties without including the remaining properties. But there is no bar to file a suit for partial partition of properties. In such a case the duty of the court is to grant time to amend the pleadings by plaintiff and if he fails to do so plaint may be rejected as it will not show a cause of action for a suit for partial partition. During pendency of the suit if it is found that only some properties were included in the suit and rest of the properties were not included in the suit on an application of a party the court may (shall)  grant time to amend plaint and allow plaintiff to include other remaining properties to be included in the plaint. But this does not mean that a suit on the basis of partial partition is barred. It may not be maintainable and may be dismissed if all properties are not brought on record but it is wrong to say that such suit on the basis of partition is barred by any law for the time being in force. If the statement in the plaint shows that only few properties and not all properties are brought on record and after giving opportunity the plaintiff fails to comply with the order then it will be a case of not-maintainability of suit and not a bar of suit. Suits which are not entertained  under some law must be read in the same law and not by aid of the limitation.

In the case of Raja Mohhamad Amir Mohhamad Khan of Mahamudabad Vs. M/s Metro pole Hostels Pvt. Ltd., AIR 2010 Uttar 7 at page 9it was found that neither Sec. 6 of the Specific Relief Act it self, nor any other provision of law barred or prevented the plaintiff from filing such a suit even in the face of the peculiar fact of the plaintiff having being disposed in compliance with Supreme Court's order. What would be the fate of the suit ultimately is   all together different matter, whether the suit would succeed on its merits or not is also all together a different matter.  It was further held that the suit was not barred based upon the statement contained in the plaint under any law for the time being in force. .                                                                                                          

Again this can further be explained by another example of a suit for declaration and possession of suit property. If a party to the suit the plaintiff is not in possession of the suit property a bare suit for declaration is not maintainable as there is bar created by Sec.34 of the Specific Relief Act. But this does not mean that court has to reject the plaint forthwith. The proviso to Sec.34 of the said Act says that "………provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." Therefore prayer for the consequential relief of possession ought to be made other wise the suit as such is not maintainable. In such cases court grant time as a matter of rule to amend pleading for seeking such relief and if party fails to make such amendment only then plaint is to be rejected.

Under Or. 7 Rule 11 courts ought to grant time to correct valuation, paying of defecate court fee, to show cause of action and to bring all facts to show how the suit is not barred by any law. Merely omission to do a particular fact as shown may bring the action of the plaintiff to reject the plaint. Further more rejection of plaint is not a bar to bring a fresh suit as per the provision of Or. VII Rule 13 of the CPC. Therefore courts should be very slow in rejecting plaints unless and until they have considered from all different facets of law and facts.

Thus what is required during hearing is giving patient hearing to the counsels for the parties and studying the citations and law of one's own accord and to follow the ratio of the judgments considered during arguments and to have broad perception on the subject under hand. The quality of a judge or an advocate also reflects when he gives a second thought on the points raised.

P.V.Namjoshi

Advocate, Ujjain