Order 7 rule 11
Saransh Reddy
(Querist) 29 November 2012
This query is : Resolved
Hello,
I found this website very useful and thus posting a query the answer to which has been perplexing me.
I am newly enrolled lawyer. My client filed a suit in trial court for injunction but the same has been dismissed by the court under Order 7 Rule 11 for non-disclosure of cause of action.
The question I want to ask is should he file a revision or a writ petition in the HC. Please help me on this.
Thanks
ajay sethi
(Expert) 29 November 2012
if no cause of action is diclosed then suit is not maintanbale . it would be futile to challenge said order in appeal
R.K Nanda
(Expert) 29 November 2012
file appeal in high court but chances are very remote.
Saransh Reddy
(Querist) 29 November 2012
Thank you for your reply Mr. Sethi and Mr. Nanda. The cause of action has been disclosed in the suit. A bare perusal of the suit would indicate that the order of the judge is erroneous as cause of action has been clearly stated.
What I want to know is whether this order can be challenged in the HC by way of an appeal or a revision. Most of the lawyers here told me that this order can be challenged only by way of a revision.
Devajyoti Barman
(Expert) 29 November 2012
Miscellaneous Appeal under Order 43 of CPC lies against the order rejecting the plaint.
Raj Kumar Makkad
(Expert) 29 November 2012
File an appeal before District Judge.
Guest
(Expert) 30 November 2012
Why do you want to file a civil revision in the HC when it is not even maintainable? A revision lies only when the law does not give you the right to file an appeal. You have the right to file an appeal.
If the suit has been dismissed by the magistrate, file an appeal in the District Court u/s 96 CPC, whereas if the same has been dismissed by the District Judge file an appeal to the HC u/s 96 CPC.
Ashish Davessar
Advocate
Supreme Court of India
Punjab and Haryana High Court
Saransh Reddy
(Querist) 30 November 2012
Mr. Davessar, I cannot thank you enough for your well reasoned reply. The senior lawyers here have been telling me that an order dismissing plaint under Order 7 rule 11 can be challenged only by a revision in the HC.
prabhakar singh
(Expert) 30 November 2012
But sorry order XLIII PROVIDES APPEAL FROM (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10 A of Order VII has been followed];BUT IT DOES NOT PROVIDE APPEAL FROM AN ORDER PASSED UNDER VII RULE 11.
THEN REVISION WOULD BE THE REMEDY .
Saransh Reddy
(Querist) 30 November 2012
Thank you Mr. Singh.
Should I then file an appeal under section 96 C.P.C as suggested by Ashish ji or file a civil revision?
Thanks again.
prabhakar singh
(Expert) 30 November 2012
It has been always a confusing matter.Another approach may be that an order rejecting the plaint must be treated a decree u/s 2(2)of C.P.C. Then a regular appeal would lie.
prabhakar singh
(Expert) 30 November 2012
However you may go through following page to file appeal
http://www.indiankanoon.org/doc/220764/
Guest
(Expert) 01 December 2012
The lawyers at your place don't seem to be abreast of the law.
An order dismissing a plaint under Order 7 Rule 11 is a decree and hence appealable under S. 96 C.P.C.
You may in this regard rely on a very recent judgment of a full bench of Andhra Pradesh High Court in the case of Molugu Ram Reddy v/s Molugu Vital Reddy reported in RCR (Civil) 2012 (3) 731.
Saransh Reddy
(Querist) 01 December 2012
Mr. Ashish Davessar,
You have given me a brahmastra to fight this case. I can never thank you enough for this. I really appreciate your thorough and immaculate knowledge of law. Here lawyers do not know such intricacies of the law.
Thank you very much again for helping a newcomer like me.
Regards,
Saransh Reddy.
