Date of Judgement
23.07.2021
Judge
HON'BLE MR. JUSTICE C. HARI SHANKAR
Parties
Plaintiffs - TAJUNISSA & ANR
Defendants - MR. VISHAL SHARMA & ORS
Subject
- Whether summons must be issued in every matter that is duly instituted?
- Whether the Court can hear Mr Ravi Gupta, learned Senior Counsel for Defendant No. 3 at this juncture?
Overview
- Mr. Ravi Gputa, distinguished Senior Counsel for Defendant No.3, argued at the commencement of these proceedings that this suit was likely to be dismissed under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, and that summons was not required.
- Mr. Anupam Lal Das, learned Senior Counsel for the plaintiff, makes two responses to Mr Gupta's submission. His first argument is that Mr. Gupta has no right of audience at this point since, under the CPC, the defendant cannot be heard till summons have been issued or a caveat has been lodged.
- Because Mr. Das claimed that this position arises from a reading of the CPC, the Court questioned Mr. Das on the provisions of the CPC on which he relied to support his claim that the Court could not allow Mr. Ravi Gupta an audience at this time. Mr. Das supports his position by citing CPC Sections 26, 27, 148A, and Order V Rule 1.
- Mr Das also contends that summons must be issued by the Court in every case where a suit is “duly instituted,” and that all other objections to the suit's maintainability must be relegated to a stage after the defendant responds to the summons, at which time the defendant may raise maintainability or other legitimate objections available. He claims, however, that the Court has no choice but to issue a summons if the suit is "duly brought."
Legal Provisions
- Order VII Rule 11(d) of the Code of Civil Procedure, 1908
- Sections 26, 27 and 148A, and Order V Rule 1 of the CPC
- Section 26 deals with the way in which lawsuits are to be brought, but not with the right of audience for either party.
- Section 27 specifies that after a suit is validly launched, summons to appear and answer the claim will be sent to the defendant, who will be served in the manner required.
- Section 148A of the CPC deals with the right to lodge a caveat.
Judgement Analysis
- The Delhi High Court has decided that hearing a defendant at the pre-summons stage in a matter on the arguments for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, even though he or she has not been given a summons or has not appeared on caveat, is not prohibited.
- Because the Court has the authority to assess the grounds for plaint rejection at the pre-summons stage under Order VII Rule 11, it can hear a defendant who is physically present in court, even though no summons has been served on him or he has not filed a caveat under the Section.
- The method for issuing summonses is governed by Order V Rule 1. Without getting into the nitty-gritty of the provision, it is evident that this petition does not deny the defendant the right of the audience if the defendant is present and seeks to have the plaint dismissed under Order VII Rule 11, before a summons is issued.
- Even if the defendant is present, the Court stated that it would be "trivially inconsistent" to deny the Court the opportunity to hear him.
Conclusion
More empirically, it would deprive the Court's right to competent legal help, despite the fact that it is available, which is essential to the administration of justice. As a result, the Court rejected the plaintiff's argument and opted to hear the parties on the defendant's challenge to the suit's maintainability under Order VII Rule 11.
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