About applicability of order 7, rule 11 of c.p.c.
Sadanand B. Panchal
(Querist) 06 February 2013
This query is : Resolved
Respected Experts,
In my Suit the Defendant has taken out Notice of Motion for rejection of my Plaint under Order 7, Rule 11 of C.P.C. at the stage when the matter was on board to file Reply for my Chamber Summons for certain amendments in the Plaint. Without filing any reply Defendant taken out the said Notice of Motion. When I informed the Hon’ble Court about this, the Hon’ble Court directed the Defendant to file reply and also ordered to make the Notice of Motion returnable on 28th February.
Brief facts: I have filed Suit for right of way –Suit open space adjoining the main road was obstructed due to excavation and building construction-since there was smaller passage of way remained and that was also going to excavate/to obstruct, I filed Suit and taken out Notice of motion- the Defendant admitted and given undertaking before Court that the Defendant will provide a temporary access to the Plaintiffs from another edge of the Suit open space and that when underground tank and Ramp Completed, the Plaintiff will be provided access through Ramp. I opposed undertaking but the Hon’ble Court accepted the same and refused my ad-interim reliefs. Thereafter the Defendant completed construction during the pendency of my Notice of Motion. But my suit open space is minimized because of illegal construction of the Defendant therefore I have taken out Chamber Summons to amend my Plaint to show what was the earlier position of the Suit open space and what is now. Without filing reply to the said Chamber Summons the Defendant has now taken out fresh Notice of Motion under Order 7, Rule 11 for rejection of the Plaint on alleging that as per undertaking Defendant has provided the access to the Plaintiffs therefore the prayers in the Plaint or reliefs sought by the Plaintiffs in the captioned Suit become infructuous and non-existent therefore the Plaint be rejected.
I am worried about this act of the Defendant that under the order 7 rule 11 the Defendant wants to reject my Plaint alongwith pending Notice of Motion and also pending Chamber Summons. Kindly explain me Can I pray the Hon’ble Court to amend my Plaint first and thereafter decide the Notice of Motion taken out by the Defendant under order 7, rule 11 of CPC? What to do in this matter? The Defendant came before the Hon’ble Court with unclean hands and to suppress the material fact that the Defendant has grabbed the portion of the right of way( Suit open space)
Kindly give me suggestion as per my above query.
Regards,
Sadanand Bhisaji Panchal
Adv.R.P.Chugh
(Expert) 06 February 2013
He is most apparently seeking rejection on the ground of non disclosure of cause of action. The Court's would always allow plaintiff to amend his plaint in order to overcome any technical problems if any. Subsequent events can always be brought to the notice of the court through an amendment, even when they give a different & separate cause of action to the plaintiff. In this regard see : Sampath Kumar v Aya Kannu (Supreme Court)
Sadanand B. Panchal
(Querist) 06 February 2013
Respected Experts,
Firstly at the ad-interim stage of my Notice of Motion Defendant admitted his wrong doing but given undertaking before Hon'ble Court that after his construction the Plaintiff will be provided unobstructed right of access-undertaking was accepted by the Hon'ble Court.But at this stage the on this point Defendant did not raised rejection of the Plaint because the Defendant has not completed the work undertaken.Work of undertaking was when completed there was violation of undertaking therefore to brought notice to the fact before the Hon'ble Court.I have taken out Chamber Summons.
Now before 7 months I have already served Writ of Summons to the Defendant, no Written statement was filed and now after filing of the Chamber Summons Defendant raised application for rejection of Plaint under N/M.
Which matter will be heard first, Whether my Ch/S or N/M for rejection of Plaint.Kindly inform me.
Regards,
Sadanand B. Panchal
Nadeem Qureshi
(Expert) 06 February 2013
Dear Querist
as per Order 7 Rule 11. Rejection of plaint
The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
1[(e) where it is not filed in duplicate;
3[(f) where the plaintiff fails to comply with the provisions of rule 9];
2[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
HIGH COURT AMENDMENT
Andhra Pradesh:-
Same as in Madras.
Karnataka:-
In Order VII, in rule 11, for clause (c), substitute the following clause, namely:-
"(c) where the relief claimed is properly valued, but the court-fee actually paid is insufficient, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court;" (w.e.f. 30-6-1967)
Madras:-
In Order VII, in rule 11, for clause (c), substitute the following clause, namely:-
"(c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court;"
1. Ins. by Act No. 46 of 1999, section 17 (w.e.f. 1-7-2002).
2. Added by Act No. 104 of 1976, sec. 57 (w.e.f. 1-2-1977).
3. Clauses (f) and (g) were inserted by Act No. 46 of 1999, section 17 and substituted by Act No 22 of 2002, Section 8 (w.e.f. 1-7-2002).
12. Procedure on rejecting plaint.
Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.
13. Where rejection of plaint does not preclude presentation of fresh plaint
The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
HIGH COURT AMENDMENT
Bombay.- In Order VII, in rule 13, after the words "hereinbefore mentioned", insert the words "or on the gounds mentioned in rule 14A(5(a) Order VI". (w.e.f. 1-10-1983).
Documents relied on in plaint
1[14. Production of document on which plaintiff sues or relies
(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such 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.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
2[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.];
(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.]
R.K Nanda
(Expert) 06 February 2013
no more to add.
Sadanand B. Panchal
(Querist) 09 February 2013
Respected Experts,
I appreciate your valuable advice. I most respectfully beg to Kindly explain me Can I pray the Hon’ble Court to amend my Plaint first and thereafter decide the Notice of Motion taken out by the Defendant under order 7, rule 11 of CPC? What to do in this matter? The Defendant came before the Hon’ble Court with unclean hands and to suppress the material fact that the Defendant has grabbed the portion of the Suit open space and therefore filed application to reject my Plaint.My cause of action still alive. Kindly advice me as I have filed the Suit in person and I have no money to engage Advocate in the matter.Please understand the situation the situation that my Suit is in danger.
Kindly give me suggestion as per my above query.
Regards,
Sadanand B. Panchal
Raj Kumar Makkad
(Expert) 13 February 2013
The grabbing of the defendant has no relevance while deciding the application under Order 7 Rule 11 of CPC wherein only the contents of the plaint are to be read over. You can insist to accept your application first but generally the application already pending shall be decided otherwise there shall not be any use of the application moved under O7 R 11 of CPC.
