Showing posts with label rejection of plaint. Show all posts
Showing posts with label rejection of plaint. Show all posts

13 October 2020

While deciding an application for rejection of plaint under Order VII Rule 11 CPC, the court is required to take the averments made therein to be correct

To set the tempo, we may start by referring to the legal position. It is well settled that a plaint can be rejected on any of the grounds enumerated under Order VII Rule 11 of the CPC. It is equally well settled that on going through an application moved under Order VII Rule 11 CPC, the court is required to examine the plaint as a whole and take the averments made therein to be correct. If on a reading of the plaint, a cause of action is made out, then the plaint cannot be rejected. While dealing with an application under Order VII Rule 11 CPC, the court must forebear from going into disputed questions of facts including the defence taken by the defendant in his written statement or his application for rejection of the plaint. [Refer: Inspiration Clothes & U. v. Collby International Ltd., 88 (2000) DLT 769; Tilak Raj Bhagat v. Ranjit Kaur, 159 (2009) DLT 470; Bhau Ram v. Janak Singh, V (2012) SLT 536; Tilak Raj Bhagat v. Ranjit Kaur, 2012 (5) AD (Del) 186; Indian City Properties Ltd. v. Vimla Singh] 198 (2013) DLT 432; and Razia Begum v. DDA 215 (2014) DLT 290 (DB)].[Para No.14]

While deciding an application for rejection of plaint under Order VII Rule 11 CPC, the court is required take the averments made therein to be correct

    It may also be emphasized that for deciding an application filed under Order VII Rule 11 CPC, the court must not be selective in picking upon the averments made in the plaint and read them in isolation. Instead, a meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein, if taken to be correct in their entirety, would result in a decree being passed. The manner of examination which a court is expected to undertake for scrutinizing the plaint and the documents filed to decide an application under Order VII Rule 11 CPC, have been discussed by the Supreme Court in a catena of decisions including in T. Arivandandam vs. T.V. Satyapal & Anr., reported as 1977 (4) SCC 467, Popat and Kotecha Property vs. State Bank of India Staff Association reported as (2005) 7 SCC 510 and Hardesh Ores Pvt. Ltd. vs. M/s. Hede & Company reported as 2007 (5) SCC 614. [Para No.15]

    In Popat and Kotecha Property (supra), the Supreme Court observed as under:
"10. Clause (d) of Order 7 Rule 11 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.

19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities." (emphasis added)[Para No.16]

29 July 2020

Facts stated in plaint has to be presume correct while deciding application under Order 7 Rule 11

In a nut shell, it can be said that for deciding whether the plaint discloses cause of action or not, the court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the Code of Civil Procedure. For the purpose of deciding the application under Order 7 Rule 11 for rejecting the plaint, the court has also to presume the facts stated in the plaint as correct.

    In the instant matter,the court below rejected the application moved by the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. with the following observations:-
"जहाँ तक प्रथम आपत्ति का प्रश्न है आदेश-7 नियम-11 में यह प्रावधान है कि जहाँ वाद पत्र हेतुक प्रकट नहीं करता है वहां वाद पत्र नामंजूर कर दिया जायेगा | वादी द्वारा प्रस्तुत दावे के अवलोकन से यह स्पष्ट है कि वाद पत्र कागज संख्या ए -3 के पैरा 49 में वादी का वाद कारण को करमवार अंकित किया है जिस पर प्रतिवादिनी का कथन है कि वह बिना आधार के और पूर्णतया असत्य है | वादी द्वारा प्रस्तुत वाद कारण सत्य है अथवा असत्य है यह साक्षयोपरांत ही तय हो सकता है | धारा 7 नियम 11 के अधीन वाद पत्र की अपेक्षा केवल वाद हेतुक प्रकट करना है न की इस स्तर पर सत्यता अथवा असत्यता परिलक्षित होनी है | चुकिं वाद पत्र वाद हेतुक प्रकट करता है ऐसे स्थिति में आदेश-7 नियम-11 के अधीन वाद पत्र नामंजूर किये जाने का कोई औचित्य आधार नहीं है |"
    Keeping in view the observations made by the court below while rejecting the application of the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. as well as the settled legal proposition of law on the point in issue that the plaint filed by the plaintiff can only be rejected when the same is barred by any law or no cause of action has accrued to the plaintiff for filing the same.

06 June 2020

Bar of period of limitation is a mix question of facts and law

Plaint can not be rejected on the ground of bar by limitation

   Whether plaint can be rejected under Order 7 Rule 11 of CPC if defendant claims the suit to be barred by limitations and disputes the time of accrual of cause of action?

Held:
   Plain can not be rejected under Order 7 Rule 11 of C.P.C. if accrual of cause of action as mentioned in the plaint is disputed to be beyond period of limitation.
   Genuineness of assertion in respect of accrual of cause of action is a mix question of facts and law.
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