Defendant Not Issued Summons Or Present Without A Caveat Can Be Heard To Decide Upon The Rejection Of The Plaint

WHAT WAS THE MATTER

• The Delhi HC was hearing the case of Tajunissa & Anr. vs Mr. Vishal Sharma &Ors.in which the third defendant (Kotak Mahindra Bank) was present without being issued a summon and neither did they filed a caveat.
• The said defendant contended that the plaint should be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC)and therefore, there should be no need to issue summons.
• The plaintiff argued that as per Sections 26, 27, 148A and Order V Rule 1 of the Code of Civil Procedure, the defendant has no right to be heard as it was not issued the summons and neither did it filed a caveat.
• After listening both the parties, the principal issue before the court was that whether summons have to be issued in every ‘duly instituted’ suit; the other one being that whether the court could hear the defendant in the present case.

WHAT DID THE PLAINTIFF ARGUE

• The counsel for the plaintiff cited that as per the provisions of the Code of Civil Procedure, it was a procedural requirement that a summon has to be issued to a defendant, or that he files a caveat, in order for such a defendant to be heard.
• He also referred to an earlier case of the Delhi HC wherein it was observed that a summon may be issued in case of a ‘duly instituted’ suit.
• Citing another case, the counsel insisted upon the requirement of issuing summons to the defendant.

WHAT DID THE COURT HELD

• The court held that the summons need not be issued when the plaint has to be returned under Order VII Rule 10 or rejected under Order VII Rule 11; summons not necessarily be issued in every ‘duly instituted’ suit.
• The court also held that since it had been established that summons need not be issued in situations of return or rejection of the suit, it would be a “trifle incongruous” if the court is denied the opportunity to hear the defendant, and therefore, the defendant shall be heard in the present case.