SUIT TO COMMENCE DE NOVO AFTER RETURN OF PLAINT

SUIT TO COMMENCE DE NOVO AFTER RETURN OF PLAINT

The Civil Procedure Code, 1908 is that essential procedural law that provides for the procedure for the enforcement of civil rights and liabilities given under a few of the substantive laws. An integral fraction of such procedural formalities is that the filing of a suit against the litigant within the court of law. Taking a look at the C.P.C, Sec 26 along with Order 4 specifies that a suit must be instituted by presenting the plaint. Presentation of the plaint is subject to Order VI and Order VII as given in the C.P.C. whereby Order VII specifically touches upon plaint and its formalities like the particulars to be contained in it.

Among various rules laid down under Order VII, Rule 11 states few of the grounds upon which the court might reject a plaint. although it’s to be noted here that Rejection of plain is different from a return of plaint (Order VII, Rule 10) wherever the court finds that it doesn’t have the jurisdiction to undertake the matter before it, the court returns the plaint to be granted to the right court that holds the rightful jurisdiction. Whenever an application is filed under Order VII, Rule 11, the court before moving forward, has to evaluate the aforementioned application and verify whether or not the plaint is permissible to be instituted or not.

In the case of Saleem Bhai v. State of Maharashtra, it was held that for the aim of deciding an application below Order VII, Rule 11, solely the averments within the plaint are admissible. That, pleas taken by the litigant in a written statement at that stage is entirely inapplicable and that the direction to file a written statement by the trial court while not deciding on the appliance under Order VII, Rule 11 would be nothing but just a procedural irregularity.

The grounds upon which the court may reject a plaint given under Order VII, Rule 11 are: – 

Where Plaint doesn’t disclose a cause of action [Rule 11(a)]

In a legal structure, an individual is given several legal rights and liabilities under the relevant substantive laws. A breach of these rights by other people incurs liability on him. Therefore, the instant the right of 1 person is breached, it offers rise to cause of action whereby the aggrieved party may bring suit within the court and ask for redressal. Rule 11(a) primarily lays down that a plaint is prone to be rejected by the court if such a cause of action, upon which the entire suit is based isn’t specific therein.

The relief claimed within the plaint is undervalued [Rule 11(b)]

Under Rule 11(b), if the plaint conferred has the claim undervalued then the court might impose a time-frame within which the relief claimed has got to be properly valued, (in case) failing in doing the aforesaid, the court can reject the plaint. Although with the proper valuation, the complainant can file a brand new suit under Order VII, Rule 13.

Where the relief claimed is properly valued however the plaint is written upon paper insufficiently stamped [Rule11(c)]

As the case could also be occasionally, the relief claimed is correctly valued however the plaint is written on paper that’s insufficiently stamped and authorized. The plaint is prone to be rejected if the person is unable to provide the court with the requisite stamp-paper. However, if the requisite court fee is paid within the time extended by the court, the suit or appeal should be treated as instituted from the date of presentation of plaint or memo of appeal for the aim of limitation as well as payment of court fee.

Where suit is barred by law [Rule 11(d)]

Where it seems that the suit so instituted is barred by any different existent law, the plaint for that shall be rejected. for example, wherever an individual entitled to institute a suit or make an application for the execution of a decree, is at the time from which the prescribed amount of period is to be reckoned, a minor or insane, or an imbecile, he might institute the suit or make the application within an equivalent amount of time once the incapacity has ceased. If not, then for that reason the plaint shall be rejected.

Where plaint isn’t filed in duplicate [Rule 11(e)]

Under Order 4, Rule 1, the plaint is needed to be filed in duplicate. In the absence of the same, the plaint is at risk to be rejected by the court.

Where plaint fails to fit with Order VII, Rule 9 [Rule 11(f)]

In case the plaint fails to satisfy the necessities given below Order VII, Rule 9 of the code, the plaint shall be rejected.

Referring to a judgment dated 5 August 2020 in M/s EXL Careers & Anr. Vs Frankfinn Aviation Services (P) Ltd., a 3 judge bench of the Hon’ble Supreme Court resolved conflicting views in 2 of its earlier division bench judgments – ONGC vs. modern Construction & Company (‘ONGC’) and Joginder Tuli vs. S. L. Bhatia (‘Joginder Tuli’). It approved ONGC and held that a suit filed in front of a court having jurisdiction once the return of plaint under Order VII Rule 10, Civil Procedure Code, 1908 (‘CPC’) is to be treated as a brand new filing and Oriental insurance company Ltd. vs. Tejparas Associates and Exports Pvt. Ltd. (‘Oriental Insurance’) was overruled.

FACTS 

Plaintiff (Frankfinn Aviation Services (P) Ltd.) filed a suit for recovery of money arising out of a Franchise Agreement (‘Agreement’) before the Civil Judge (Senior Division) at Gurgaon. The litigant applied for the return of plaint under Order VII Rule 10 of the CPC, pleading that the cause of action arose in Meerut and that the litigant didn’t reside in Gurgaon. The application was rejected and a preliminary issue on jurisdiction was conjointly decided in favor of the plaintiff.

Litigant filed a revision petition before the high court against this order. The high court held Clause 16B of the agreement bestowed exclusive territorial jurisdiction to courts at Delhi, thus the Gurgaon court was directed to return the file. Meanwhile, the defendant’s proof was terminated before the Gurgaon Court.

Litigant filed another revision petition once the Gurgaon Court allowed the plaintiffs application for the return of the entire file, however, the same was dismissed. Thenceforth litigant filed a special leave petition that was referred to a bigger bench in the context of the conflict between ONGC and Joginder Tuli.

JUDGMENT

  1. It had been held that ONGC lays down the proper position of law i.e., once a plaint is returned, proceedings before a court that inherently lacks jurisdiction should be set at naught, and upon presentation of plaint to a court of competent jurisdiction, proceedings must start de novo. The time spent before the first court may be excluded while computing limitation period as per Section 14 of the Limitation Act, 1963.
  2. It was noted that the order of ‘return of the file’ might solely mean the return of plaint and might not enlarge the scope of Order VII Rule 10 and 10A, CPC.
  3. It had been held that Joginder Tuli doesn’t lay down the law on this subject and discretionary jurisdiction was exercised within the facts of that case.
  4. It had been held that transfer of a suit under Section 24, CPC was entirely dissimilar from the return of plaint. In transfer, each the transferor and also the transferee court has jurisdiction to listen to the matter. Hence, the transferee court has the discretion to either continue proceedings or rehear the matter. However, Order VII Rule 10 and 10A of the CPC does not give the court such discretion.
  5. Consequently, Oriental Insurance was overruled as Insertion of Rule 10A in 1977 couldn’t be construed to imply that the suit may continue from the stage at which plaint was returned; and Reliance placed on Joginder Tuli was misplaced because it failed to lay down the law.
  6. Having approved ONGC, within the instant case, the Supreme Court exercised its discretion in the interest of justice and held that the suit would continue from the stage the plaint was returned since, the defendant’s objection of the exclusionary clause in the agreement was an afterthought; and that the suit was ready for final hearing.

The article is authored by Shreya.

This Post Has One Comment

  1. Adv. Prashant Kumar

    Quite an informative Article. Good Work by Ms. Shreya..

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