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isubmiya Babamiya Shalkhnag Vs. Vishnu Krishna Marathe - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 610 of 1959
Judge
Reported inAIR1961Bom96; (1960)62BOMLR945; ILR1961Bom455
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 7, Rule 11
Appellantisubmiya Babamiya Shalkhnag
RespondentVishnu Krishna Marathe
Appellant AdvocateM.G. Karmali, Adv.
Respondent AdvocateK.V. Joshi, Adv.
Excerpt:
civil procedure code (act v of 1908), order vii, rule 11 - rejection of plaint--plaint rejected on ground that plaintiff had failed to furnish information called for by court-- whether application to restore such plaint to file maintainable.;the court cannot reject a plaint merely on the ground that the plaintiff was called upon by the court to furnish the necessary information but had failed to do so. an application made by the plaintiff for restoring a plaint to file, rejected on such ground, is maintainable. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande &..........vii rule 11 but that it was one which was not justified under any provisions of the code. the learned judge who heard the preliminary point was of the view that inasmuch as the order rejecting the plaint specifically mentioned that it was made under order vii rule 11 of the code he could not go behind it, and that, therefore, he had to consider the application, which was made by the plaintiff, on the basis that the plaintiff asked by that application to set aside the order rejecting the plaint made under order vii rule 11.3a. as regards the preliminary objection raised by the defendant to the maintainability of the application, the learned judge relied upon a decision reported in mohanlal and co. v. yolibai 34 bom lr 714 : air 1932 hom 271, and held that the application that was.....
Judgment:
ORDER

1. This application has been filed by the defendant against an order passed by the learned Civil Judge, Junior Division, Mangaon, directing the application made by the plaintiff for restoring the plaint that was already rejected by the Court to file 'to proceed further',

2. The plaintiff, it appears, had filed the suit being regular Civil Suit No. 62 of 1957 for the purpose of recovering a certain sum of money from the defendant found due at the foot of a certain account This suit was filed on 10th October 1937. On 11th March 1938, the Court passed an order calling upon the plaintiff to clarify (1) how the cause of action arose on 10-10-1954? (2) how the claim was in time? and (3) how and at what rate and on what amount the interest was charged? The order further stated that in case the plaintiff failed to do so within a week the plaint shall be rejected. It appears, however, that the plaintiff either deliberately or through oversight failed to furnish the necessary particulars which were ordered to be furnished by the aforesaid order within the lime allowed by it. Accordingly, on 18th March 1958 when the suit reached hearing before the Court, an order was passed to the effect that the plaintiff had not clarified the points and that, therefore, the plaint was rejected under Order VII Rule 11 of the Code of Civil Procedure.

3. The plaintiff very soon after this order was nude came to learn about it and made an application on 22nd March 1958 for the purpose of setting aside the order rejecting the plaint and taking it on file. A preliminary objection was raised by the defendant to the maintainability of the application itself. It was contended that an order passed under Order VII Rule 11 of the Civil Procedure Code amounted to a decree not by reason of any specific provisions in the Code to that effect but by reason of certain decisions of various Courts, which hold that order rejecting a plaint under Order VII Rule 11 amounted to a decree and that, therefore, such an order was appealable. On behalf of the plaintiff, however, it was contended that the order that was passed was not an order under Order VII Rule 11 but that it was one which was not justified under any provisions of the Code. The learned Judge who heard the preliminary point was of the view that inasmuch as the order rejecting the plaint specifically mentioned that it was made under Order VII Rule 11 of the Code he could not go behind it, and that, therefore, he had to consider the application, which was made by the plaintiff, on the basis that the plaintiff asked by that application to set aside the order rejecting the plaint made under Order VII Rule 11.

3a. As regards the preliminary objection raised by the defendant to the maintainability of the application, the learned Judge relied upon a decision reported in Mohanlal and Co. v. Yolibai 34 Bom LR 714 : AIR 1932 Hom 271, and held that the application that was made by the plaintiff for restoring the plaint to file could be entertained under Section 151 of the Code. Accordingly he found on the preliminary issue against the defendant and ordered the application to proceed. It is against this order that the present revision application has been filed by the defendant in the Court.

4. In support of this application it is contended by the learned Advocate for the defendant that when an appeal could be filed against the order in question, such an application by the plaintiff could not be entertained and the Court will not exercise its inherent jurisdiction for the purpose. For this proposition the learned Advocate relied upon a decision reported in : AIR1935Cal336 , Saratchandra Sen v. Mrityunjay Ray Chaudhuri. That was undoubtedly a case wherein an order rejecting the plaint under Order VII Rule 11 was passed. In that case, however, although the claim in suit was properly valued, the court fee that was Paid in respect thereof was not adequate. The Court thereupon called upon the plaintiff to supply the deficit Court fee which the plaintiff failed to do. On that account the Court exercised its power under Order VII Rule 11 and rejected the plaint on the ground that the plaintiffs had failed to supply the deficit Court fee in spite of time having been allowed to him for the purpose. In order to get that plaint restored to file the plaintiff filed an application in the same Court. The trial Court allowed the application but in appeal the High Court held that the order in question amounted to a decree and that, inasmuch as an appeal was competent against that decree, no application for restoration of the plaint to file could be entertained and the Court would not exercise its inherent jurisdiction for the purpose of giving the relief which the plaintiff asked for by that application.

5. On the other hand, Mr. Joshi, the learned Advocate for the plaintiff relied upon the decision of Rangnekar J., reported in 34 Bom LR 714 : AIR 1932 Bom 271. This decision has been also relied upon by the learned Judge of the lower Court.

6. In my opinion, however, the present case does not fall within the ambit of either of the two cases. The order that has been passed in this case, in my opinion, does not fall within the terms of Order VII Rule 11. Rule 11 contemplates the rejection of a plaint by a Court in certain contingencies. One of these contingencies is that the plaint discloses no cause of action. On the reading of the plaint, if the Court finds that the plain) discloses no cause of action, then it is perfectly proper for the Court, instead of rejecting the plaint outright, to call upon the plaintiff to clarify as to how any cause of action is disclosed. If in spite of such an opportunity being given to the plaintiff, the plaintiff makes a default and does not assist the Court in the matter, it is certainly true that the Court can under Order VII Rule 11 reject the plaint. But it can do so only on the finding that the plaint discloses no cause of action. It cannot, in other words, reject the plaint merely on the ground that the plaintiff was called upon to furnish the necessary information but had failed to do so. The powers under Order VII Rule 11 can be exercised only on the Court finding as a matter of fact that one or more of the contingencies mentioned in the rule do exist. On the fact (face?) of the present order it is quite clear that the learned Judge has not indicated either that the plaint did not show any cause of action or that the claim in the suit was barred by limitation. In the absence of any such reasons for rejecting the plaint, in my opinion, the order that is passed by the learned Judge is without any warrant in law and, therefore, it is. just and proper that the learned Judge in the Court below should proceed with the hearing of the application that is made by the plaintiff for the purpose of restoring the plaint to file.

7. The application, to my mind, is perfectly competent and I see no reason why it is not maintainable. In the result, the application is dismissed and the rule is discharged with costs.

8. Application dismissed.


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