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Nishit M. Prabhu Verlekar Vs. Chandranath Vinayak Dhume and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Civil Appeal No. 45 of 1984
Judge
Reported inAIR1986Bom46
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 11
AppellantNishit M. Prabhu Verlekar
RespondentChandranath Vinayak Dhume and ors.
Appellant AdvocateS.K. Kakodkar, Adv.
Respondent AdvocateM.S. Usagaonkar and;M.K. Naik Kambli, Advs.
Excerpt:
.....7, rule 11 of the civil procedure code, 1908 - in the particular instance, the plaint was admitted and summons to settle issues were served - the court observed that the defendants could not challenge the maintainability of a suit by application without filing a written statement in this context - it was held that the rejection of plaint of such application was not proper - - based on pleadings of the parties it is the duty of the trial court to cast appropriate issues and if the court is satisfied that there are preliminary issues to be decided depending on the nature of the preliminary issues, order 14 of the code would be attracted and the preliminary objections could be accordingly decided. sadiq, reported in air 1968 j&k 98. in paragraph 10 of this report it has been observed..........defendants for settlement of issues. however, none of the defendants filed their defence by way of written statements. however, respondents 1 and 2 by their application dated 18th october, 1983 raised an objection to the maintainability of the suit on the ground that the notice averred to have been given by the appellant under s.281a of the income-tax act is not in accordance with law and, therefore, the suit is liable to be rejected at the threshold only. after hearing the parties, the learned trial judge made the impugned order dated 14th june, 1984 by which he held that the notice averred to have been given in paragraph 28 of the plaint was not in compliance with s. 281a and he, therefore, rejected the plaint. it is against this rejection that the original plaintiff has filed the.....
Judgment:

Kamat, J.

1. By order dated 14th June, 1984 the suit of the appellant who was the original plaintiff was dismissed as being not maintainable for not having complied with the requirement of notice under S. 281A of the Income-tax Act 1961.

2. The appellant had filed a suit for a declaration that he and respondent No.1 and the dissolved partnership firm constituted by himself and respondent No.1 are the absolute owners of a plot of land described in Exhibit B to the plaint on which a building was constructed and respondent No.2 holds the said building on the plot as a nominee or Benamidar of the appellant and respondent No.1 or the said partnership and, therefore, the respondent No.2 has no right or interest of whatsoever nature in respect of the said plot and the building thereon.

3. Once this suit was instituted summonses were issued to all the defendants for settlement of issues. However, none of the defendants filed their defence by way of written statements. However, respondents 1 and 2 by their application dated 18th October, 1983 raised an objection to the maintainability of the suit on the ground that the notice averred to have been given by the appellant under S.281A of the Income-tax Act is not in accordance with law and, therefore, the suit is liable to be rejected at the threshold only. After hearing the parties, the learned trial Judge made the impugned order dated 14th June, 1984 by which he held that the notice averred to have been given in paragraph 28 of the plaint was not in compliance with S. 281A and he, therefore, rejected the plaint. It is against this rejection that the original plaintiff has filed the present appeal.

4. In the first instance it must be mentioned that in spite of the summonses being issued to the respondents for settlement of issues, no written statement was filed by them and the so called preliminary objection raised was by that application dated 18th October, 1983. Since we find that this (is?) a peculiar procedure adopted in this case, without going into the merits of the appeal, we posed the query to the parties as to why the impugned order be not set aside and matter remitted to the trial Court by directing the respondents to file their appropriate defences and take all points they wish in their respective written statements.

5. It must be mentioned that filing piecemeal applications raising objections, be it preliminary or otherwise, has to be deprecated. It may be possible that the defendants have many defences to raise and for that matter even in regard to the maintainability of the suit itself. The law provides that it is for the defendants to raise all sorts of objections to the maintainability of the suit and meet the case by filing appropriate defences or written statements. Based on pleadings of the parties it is the duty of the trial Court to cast appropriate issues and if the Court is satisfied that there are preliminary issues to be decided depending on the nature of the preliminary issues, Order 14 of the Code would be attracted and the preliminary objections could be accordingly decided. Shri M.S. Usagaonkar, learned counsel for the respondents, in support of the impugned order, however, contended that inasmuch as there is power under O. 7, R.11 of the Code to reject a plaint on grounds enumerated under (a) to (d), it is yet open to the trial Court to entertain an application from the defendants even before the defendants file their written statements and, therefore, there cannot be any objection for adopting this sort of procedure. He urges that once there is a power of rejection given to the Court and that too, even before any summons is issued to the defendant, such power can be yet used by the Court even after the summonses are issued to the defendants and, therefore, there cannot be any complaint about the maintainability of an application by the defendants pointing out to the trial Court as to the ground on which a plaint is liable to be rejected. He placed reliance on the authority of Bakshi Ghulam Mohd. v. G.M. Sadiq, reported in AIR 1968 J&K; 98. In paragraph 10 of this report it has been observed by the single Judge that if the Court failed to exercise its powers under R.11, Or. 7, at the time of admitting the plaint, there is no bar to its exercising this power at a later stage, when the Court is apprised of the error by the defendants even before they have filed their written statements. It is further observed that if the Court could reject the plaint on its own motion before admitting the plaint, it can do so at any stage even before the defendants have filed their written statements.

6. However, it must be seen that in paragraph 28 of the plaint the appellant has clearly averred that he has served the notice as required under S. 281A of the Income-tax Act. It is clear to us on going through the plaint that the trial Court admitted the same and, thereafter, made the order for issue of summonses for settlement of issues to the defendants. Once the summonses are served on the defendants all that is required of them is to file their written statements and there is no provision whatsoever in the Code which provides that a defendant can raise any objection to the maintainability of the suit by any application before filing his defence. From this it is clear to us that the learned Judge did not exercise his powers mentioned under R.11, O.7, but acted on the application dated 18th October, 1983 of the defendants. We also cannot ignore that there was a clear averment that notice as required under S. 281A of the Income-tax Act has been mentioned to have been given to the concerned department. The question as to whether that notice was in compliance with all the requirements of the law or not is an issue which requires no doubt to be gone into by trial Court but, prima facie, at that stage on the statement as it is contained in paragraph 28 of the plaint, the trial Court could not have rejected the plaint under R.11, O.7. In so far as the authority of AIR 1968 J&K; 98 is concerned, we are unable to agree that there is any definite law laid down by the single Judge of that Court with regard to the stage at which the trial Court could reject the plaint by invoking R.11 of O.7 as there is no discussion with regard to the various provisions of law. We already made a mention of paragraph 10 of that report and at the foot of that paragraph the same Judge has even mentioned that the question of rejection of a suit under R.11 of O.7 has to be decided even on a mere perusal of the plaint and on no other material. This authority, therefore, does not help the respondents.

7. Mr. S.K. Kakodkar, learned counsel for the appellant, is right when he points out that in the instant case there is an order for settlement of issues and in terms of that order summons had been issued and that order remains without any challenge. There is great force in the submission of Shri Kakodkar that once a summons for settlement of issues has been issued the defendants are duty bound to file their defences and if by piecemeal application they are permitted to take objections, and even assuming that such course does not contravene any procedure of the law, it may, however, lead to undesirable result and a cantankerous defendant may go on filing one applications without filing his written statement. On facts and circumstances of this course adopted by the respondents after the summons was received by them for settlement of issues is far from correct and the learned trial Court ought not to have entertained such application to decide the issue of the validity of the notice.

8. Without going into the merits of this appeal, we, therefore, quash and set aside the impugned order dated 14th June, 1984 and restore the special Civil Suit No.174 of 1982 on the file of the Civil Judge, Senior Division, Panaji. The respondents are directed to file their written statements in the appellant's suit on a date to be fixed by the trial Court and for this purpose the parties are directed to appear before the trial Court on 8th July, 1985 at 10.30 a.m. It shall be open to the respondents to raise the point of validity or otherwise of notice under S. 281A and they shall not be precluded from doing so. If and when the issues are raised in accordance with the established procedure. But, however, the trial Court is directed to hear the parties afresh and it shall be open to the appellant/plaintiff to canvass that the notice given by him is in accordance with the requirement and to canvass that the defendants have no locus standi to challenge the validity or adequacy of the said notice. The appeal is, accordingly, allowed and the parties are left to bear their own costs. Appeal allowed.


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