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Sreedam Chandra Bhur Vs. Tencori Mukherjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 1 of 1952
Reported inAIR1953Cal222,57CWN104
ActsCode of Civil Procedure (CPC) , 1908 - Section 80 - Order 7, Rule 11
AppellantSreedam Chandra Bhur
RespondentTencori Mukherjee and ors.
Appellant AdvocateNirendra Nath De, ;Upendra Chandra Mallick and ;Chittaranjan Chatterjee, Advs.
Respondent AdvocateApurba Charan Mukherjee and ;Ganga Narayan Chandra, Advs.
DispositionAppeal allowed
Cases ReferredPran Krishna v. Kripanath
- .....and was immediately rejected by the learned subordinate judge under order vii, rule 11(d) of the code of civil procedure for non-compliance of the provisions contained in section 80 of the code. a fresh plaint was filed the next day, and the learned subordinate judge heard the counsel for the plaintiff and reserved his orders. the next day the learned subordinate judge again came to the conclusion that the plaint must be rejected as the chandernagore administration was a government under section 80 of the code. no notice having been served under that section the plaint must be rejected.5. on behalf of the plaintiff appellant, it is contended that the subordinate judge should not have rejected the plaint at the stage when he had so done. it is not possible to finally decide the question.....

R.P. Mookerjee J.

1. This appeal is directed against an order passed by the Subordinate Judge, Chandernagore, rejecting a plaint on the ground that the provisions of Section 80, Civil P.C., had not been complied with. The order was passed immediately after the plaint was filed and before any notice had been issued on the defendants.

2. I need refer only to such of the relevant facts as would be necessary to appreciate the objection raised 'suo motu' by the learned Subordinate Judge and the contentions raised by the parties before this Court.

3. The plaintiff filed the suit against certain individuals in their personal capacity and also as members of the Council of Administration, or the Municipal Assembly, as the case may be, of the Free City of Chandernagore. The said Council and Assembly were also impleaded as party defendants. The suit was one for a declaration that a certain resolution passed by the Council of Administration was illegal and invalid. There were further prayers for certain mandatory orders on the defendants including the Council and the Assembly and the other defendants in their capacity as members of those bodies.

4. The plaint was originally filed on the 4th December 1951, and was immediately rejected by the learned Subordinate Judge under Order VII, Rule 11(d) of the Code of Civil Procedure for non-compliance of the provisions contained in Section 80 of the Code. A fresh plaint was filed the next day, and the learned Subordinate Judge heard the Counsel for the plaintiff and reserved his orders. The next day the learned Subordinate Judge again came to the conclusion that the plaint must be rejected as the Chandernagore Administration was a Government under Section 80 of the Code. No notice having been served under that section the plaint must be rejected.

5. On behalf of the plaintiff appellant, it is contended that the Subordinate Judge should not have rejected the plaint at the stage when he had so done. It is not possible to finally decide the question whether either the Council or the Assembly can be regarded as 'the Government' under Section 80, Civil P.C., or any one of the other defendants as 'public officers'. Mr. De has further contended that the Chandernagore Administration is a Local Self-Government body and not the Government.

6. Under Rule 11, Order 7, Civil P.C., 'The plaint shall be rejected in the following cases :

* * * *

(d) when the suit appears from the statement in the plaint to be barred by any law.'

7. This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is 'prima facie' barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the Statute and no indication is given that limitation has been saved, the plaint may be rejected. Even in such a case, an opportunity is to be given to the plaintiff to amend the plaint by setting out an acknowledgment in writing signed by the defendant within the period of limitation if it is so prayed, and that without passing an order for rejection of the plaint. -- 'Gunnaji Bhavaji v. Makanji Khoosal Chand', 34 Bom 250. As was observed in --'Ratan Chand v. Secy. of State', 18 Cal WN 1340, action is to be taken under Order VII, Rule 11 of the Code of Civil Procedure only if there is a clear and specific admission in the plaint from which it follows that the suit is barred-Reference may also be made to the observations of this Court in -- 'Pran Krishna v. Kripanath', 21 Cal WN 209.

8. Let us now consider whether on the plaint as filed the Court will be justified in rejecting in limine the plaint under Clause (d), Rule 11, Order 7, Civil P.C. In the body of the plaint there is no admission that the Council or the Assembly is the Government under Section 80, Civil P. C. On the other hand, it is seriously contested on behalf of the plaintiff that neither of the two bodies can even be deemed to be the government. The learned Subordinate Judge refers in his order vaguely to the

'trend of French Statutes conferring greater and greater powers on the French Settlement in India and creating a 'Council do Government' there and later on cutting out Chandernagore from the Federation and conferring on Chandernagore all those powers with a separate delegate of the 'Commissaire de la repblique', it is evident that the Chandernagore administration is a government in the grammatical and ordinary sense of the word, though its functions may fall short of the those of the Governments existing in India.'

9. Before us reliance was placed by both the parties on a printed copy of a Decree, dated 7-11-1947, issued by the President and the Council of Ministers in France (abrogating an earlier Decree, dated the 30-6-1947,) creating the Free Town of Chandernagore. Reference is made therein to a large number of earlier Decrees which are stated to have been perused before the present Decree, dated 7-11-1947, was passed. We have not before us copies of the other Decrees. We have not also materials from which it may be possible at this stage to reach a final decision as to the status of either Chandernagore or the legal position occupied by the Council or the Assembly or the President occupying the position previously held by the Mayor of Chandernagore.

10. It is necessary to refer to another change which had taken place so far as the international position of Chandernagore is concerned. Under an arrangement between the Indian and the French Governments, administration of Chandernagore in certain matters had been left to the Central Government of India. The 'de jure' possession of Chandernagore is stated by both the parties to be as a part of the French possessions in India. According to another contention there are two sovereign authorities, the French and the Indian, if that is possible under the International law.

11. The Government of India under a notification, dated 1-5-1950, purported to act under the Foreign Jurisdiction Act (XLVII of 1947), extending the operation of certain Indian Statutes, including the Code of Civil Procedure, as applicable in Chandernagore. At one stage of the argument on behalf of the defendants, it was attempted to be urged that the extension of the Code of Civil Procedure to Chandernagore was not legal; and that further if the Code of Civil Procedure was applicable, it could be shown that the present suit was barred under Section 80, Civil P.C. It had further been urged that even if the French law were applicable, the suit was also otherwise barred.

12. We do not think it necessary to refer to other points urged before us by the contending parties. Suffice it to say that the question whether even if the Code of Civil Procedure applies, whether Section 80 would be attracted or not cannot be decided merely on the plaint as it stands. The Court should have registered the plaint, issued notices on the defendants and allowed them to file their written statements. After issues were raised it would have been open to the Court to take up one or more of the issues as preliminary ones and decide the same. Objection that had been raised by the Court 'suo motu' and such other objections as may be raised by the defendants would have to be tried on the merits, and only after all the necessary facts and materials are brought before the Court.

13. Whether Article 228 of the Constitution can or would be attracted after the written statements are filed would also have to be considered at the proper stage.

14. The order rejecting the plaint cannot be accepted. This appeal is accordingly allowed, the order passed by the Lower Court rejecting the plaint is set aside. The case is remitted to that Court so that the plaint may be registered and notices issued on the defendants and the procedure followed according to law. In view of the fact that the order passed by the Lower Court was not on an objection raised by the defendants parties will bear their respective costs in this Court.

15. In view of the order passed in this appeal, a certificate will be issued in terms of Section 13, Court-fees Act, authorising the appellant to receive back from the Collector the full amount of Court-fees paid on the memorandum of appeal in this Court.

16. During the pendency of the appeal in this Court, certain orders were passed on 8-1-1952, in Civil Rule No. 3016F of 1951. We direct that the directions issued by this Court on the 8-1-1952, will continue to be operative up to the 6-8-1952. It will be open to either of the parties to move the Lower Court within that date or thereafter for such order or orders to be operative after the expiry of that date. We do not indicate in any way as to what such order or orders should be so far as the 'interim' orders are concerned. Liberty is also reserved to the parties to mention to this Court about the disposal of the amount now lying in deposit in terms of the orders passed in Civil Rule No. 3016F of 1951 on the 8-1-1952.

Renupada Mukherjee, J.

17. I agree.

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