Category: Code of Civil Procedure

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FACTS: Plaintiff here is private contractor and defendant is government The plaintiff had filed an application for dispensing of the notice under section 80 of C.P.C in Trial Court.    The Trial court ordered the relief to the plaintiff without notice to the defendant under Section 80(2). The said order has been challenged by the defendants contending that there was no notice served and alleged that the case does not fall under subsection 2.

ISSUE: Whether or not the suit filed by the plaintiff was maintainable because of the alleged non-compliance with the provision of section 80 C.P.C?

RATIO:

• From a joint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, service of notice under sub-section (1) is necessary with the exception of where urgent and immediate relief is to be granted by the Court, in such cases a suit against the Government or a public officer may be instituted, yet with the leave of the Court.
• Leave of the Court is a condition precedent. Such leave must be taken before the institution of a suit without serving notice. This restriction on the exercise of power by the Court has been imposed, so, the Court cannot grant relief, whether between interim or otherwise, with the exception of after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit.

Holding:

• In its reply, the defendant had not raised any objection to the urgent and immediate relief contended by the plaintiff. So, the court found that the defendant has waived off his right to raise an objection.
• So, the court is of the opinion that the order passed by the subordinate judge was not beyond his jurisdiction and the matter should not be remanded back to the Subordinate Judge for reconsideration.

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Facts: – A plaint was rejected by the trial Court, and in appeal, that order was reversed by the Appellate Court, which directed the trial Court to proceed with the suit. It is therefore against this order of the appellate court that the appeal has been filed.
The plaint was rejected by the trial Court after issues had been framed by it. So the order is clearly wrong. Under Order 14, Rule 1, Civil. Procedure Code, issues are framed at the first hearing of the suit i.e. after the suit has been admitted under Order 7, Rule 9, Civil Procedure Code. When a suit has been admitted under Order 7, Rule 9, Civil Procedure Code, it cannot be rejected under Order 7, Rule 11, Civil Procedure Code.
Issue: – At what stage can the courts reject a plaint? Can it be rejected post framing of the issues
Holding: – A plaint cannot be rejected after the issues are framed. It is also clear from Order 9, Civil Procedure Code, that after summons are served on the defendants, the suit can be dismissed but the plaint cannot be rejected. The lower appellate Court was therefore right in setting aside the order of rejection of the plaint,
Thus, on the whole, we are satisfied that the trial court was right in returning the plaint to the plaintiff for being presented to the proper court. We, therefore, affirm the order returning the plaint.
In this case, there was a conflict between application of section 16 and 20. It was then said that section 20 is subject to the limitations of section 16 and therefore when section 16 is applicable, section 20 will not be relied upon.

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Facts: – In this case basically the appeal was filed against the order of rejection of plaint against the appellant.

The appellant-Society, the owner of the property entered into an Agreement for Sale of the property in favor of one S. Velayutham – 2nd defendant in the suit on the condition that the transaction should be completed within 6 months after obtaining clearance from Income Tax and other departments and also received an amount of Rs. 5 lakhs as an advance.

Issue: – Whether the Judge of the High Court was justified in ordering rejection of the plaint?

Holding: – Power under Order VII Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.   In view of Order VII Rule 11(a) and 11(d), the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law.

In the absence of any cause of action shown against the defendant, the suit cannot be preceded either for specific performance or for the recovery of money advanced. Therefore the judge rightly rejected the plaint for non-disclosure of the cause of action.

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Facts: Begum Sahib, the plaintiff, is the daughter of the Mehar Sajeda Sultan. The defendants are her siblings and their children. The mother apparently made an oral will before her death in Delhi in the presence of the defendants because of which certain actions were taken by her siblings regarding the property. Now she has prayed for the following;

“(a) Pass a decree of declaration declaring the oral Will dated 1.1.1995 allegedly made by Her Highness Begum Mehar Taj Sajida Sultan was never made;

(b) to pass a decree of partition in favour of the plaintiff in respect of her entitled share in view of the Islamic Personal (c) Pass a decree of rendition of account in respect of the earnings of the above-mentioned properties w.e.f. June, 2000 until filing of the present suit;

Issue: Is Delhi the proper jurisdiction for the institution of the present suit while the properties are situated in the district of Gurgaon and thereby doesn’t the plaint need to be returned under Order 7 Rule 10?

The plaintiff argued that since the alleged oral declaration was made at Delhi which is reason for this suit, the plaintiff has the necessary cause of action to file the suit in Delhi under the Proviso to section 16 of the code and the court has jurisdiction to entertain it

The defendants raised an objection to the jurisdiction of the trial court. They pleaded that the main relief sought in the plaint was for partition of the properties situate in Gurgaon, not falling within the jurisdiction of Delhi court and the declarations sought for are also related to the said properties and in the light of Section 16(b)and (d) of the Code of Civil Procedure (for short ’the Code’), the jurisdiction to entertain the suit was with the concerned court in the State of Haryana and hence the plaint was liable to be rejected. Counsel further submitted that the proviso to Section 16 of the Code had no application since this was not a case where mere personal obedience to the decree would result in an effective decree. He further pointed out that Section 20 of the Code will have no application in a case where Section 16 squarely applies since Section 20 was only a residuary provision.

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Facts:- The Appellant had instituted a suit inter alia for permanent injunction, infringement of trademark, damages, against the Respondents claiming to be engaged in the field of printed matter, paper articles, newspapers, periodicals, comic books and a lot of other girly shit. According to the Appellant they are the proprietor of Archie Comic Publication Inc. and own the “ARCHIE” trademark with its variations.

The Respondents are allegedly involved in the business of manufacturing and selling kids wear under the said trademark.

Issue:-  In the plaint it is nowhere averred that the Appellant is having its office anywhere in India. Thus, from the pleadings it is evident that the Appellant has no place of work in India; THEREFORE the Respondents moved an application under Order 7 Rule 11 for rejection of the plaint urging that the Court of Delhi had no jurisdiction, as neither the Appellant carries on his work or personally works for gain at Delhi nor the Respondents reside or carry on business nor any cause of action has arisen in Delhi. The Appellant filed an application under Order 6 Rule 17 to add some pointers against the respondent.

Holding:-This case talks about amendment of a plaint and states if the plaint discloses incomplete facts then an opportunity for amendment can be given to the plaintiff however if the plaint completely fails to disclose any of the facts then such amendment of a plaint cannot be given.

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FACTS – An application for amendment of written statement filed by appellants which was contested by the plaintiff.

HELD – Under Order 6 Rule 17 CPC (Amendment of pleadings – Court can at any stage of proceedings can allow party to alter or amend his pleadings in such a manner which is just and that such amendment is important for determining the real questions in controversy between the parties), it is clear that the court has the power to allow alteration in the pleadings if it is of the view that the amendment can determine the real question in controversy. The court should be liberal in granting the prayer for amendment of pleading unless serious injustice or irreparable loss is caused to other side or the ground of prayer for an amendment was not bona fide.

In the case of amendment written statement, the defendant is entitled to take new defence and even plead inconsistent stand as long as it does not lead to grossly inconsistent plea or withdrawal of admission causing prejudice to the plaintiff.

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This order will dispose of an application under Order 7, Rule 11(Rejection of plaint in cases of non-disclosure of cause of action, undervalued relief claim, plaint is insufficiently stamped or suit appears from statement in plaint barred by law) of the Code of Civil Procedure (CPC) filed by the defendants, for rejection of the suit as not disclosing any cause of action, and also barred in law.

FACTS – Plaintiff is a company, members and shareholders are insecticides manufacturers. Plaintiff aggrieved by series of articles published by defendants Rajasthan Patrika. Plaintiffs claim that the articles published by defendants lower its reputation and those of its members and claim damages. The plaintiff says articles contain falsehoods about levels of pesticides used and its alleged harmful effects, and these articles defame all pesticide and insecticide manufacturers i.e. plaintiff’s members.

In their application under Order 7 Rule 11 CPC, the defendants contend that the principal for a suit for defamation is that the plaintiff should be an individual or a determinate body. The defendants argue since plaintiff is an association of firms, cannot be termed as a determinate body.

ISSUES –

Jurisdiction of the court – The decision in Indian Potash Ltd. V. Media Contents and Communication Services, makes it clear that in case of publication of defamatory articles in books or newspapers etc. the plaintiff can sue at any of the places where the newspaper is available. The court possesses jurisdiction to entertain the present suit.

Whether defendants are correct in alleging that there is no defamation or libel – For a civil remedy to lie against defamation, following ingredients need to be fulfilled:- 1. The statements must be false and defamatory, 2. They must refer to the plaintiff, 3. The statements must be published by the defendant.

In this case, both parties agree that there is no direct reference to the plaintiff or its members. Therefore, the second condition not fulfilled. The defendants say that there is no specific reference to anyone or few pesticide manufacturers, it is to point out harmful effects of overuse of pesticides. A suit for defamation cannot be maintainable if the alleged defamatory statements do not refer to a determinate or definite class or group of persons.

Order 7 Rule 11 requires a cause of action to be disclosed. In the plaint, there should be allegations which disclose the cause of action. For the action of defamation to be maintainable, the plaint must contain allegations which satisfy essentials for an action of defamation and complete the disclosure of cause of action. The court decided that upon reading the plaint as a whole, it could not be said to have disclosed a cause of action. The plaint is therefore liable to be rejected under Order 7 Rule 11 CPC.

Whether the plaintiff can sue in a representative capacity on behalf of its members – Plaintiff’s objects are to act on behalf of the body of manufacturers and promote their interest. It is not a subsidiary of any of its members, it has a separate corporate personality. The plaintiff says that the alleged libel is something that hurts its members and therefore can act on their behalf. The court says that the plaintiff is a distinct company, separate from its members and in this case the plaintiff cannot sue on their behalf.

JUDGEMENT

In view of the above discussion, it is held that the defendants have been able to establish that the suit does not disclose any triable cause of action and that the plaintiff, in any event, cannot maintain and file it. Rejected as not disclosing any cause of action

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FACTS – Appellant board issued circular introducing the coffee export stamp for export of coffee. The respondent, registered with the board as a member exported coffee without the stamps. The board issued show cause notice which was replied by the respondent. Then respondent filed two consecutive suits praying for a decree for a specified amount and costs of suit. They said the board failed to supply the stamps which lead to delay in shipment of coffee resulting in losses.

Trial court decreed the first suit but dismissed the second suit. The high court partly allowed the appeals. The board came up with appeal before SC that the two suits filed by respondent were barred by Order 2 Rule 2 (comes into operation when cause of action on which previous suit was filed forms the foundation of the subsequent suit and when the plaintiff could have pleaded for the damages in the first suit, which he pleaded for in the subsequent suit).

Cause of action was when the respondent purchased coffee from appellant in an auction on the assurance that the ICO stamps would be supplied to them.

ISSUE – Whether the two suits filed by the respondent are barred under Order 2 Rule 2 CPC?

Held – In order to determine this, the courts examine the cause of action pleaded by the exporter in both suits. It is found that the cause of action in both suits is identical and relief claimed in a subsequent suit could have been pleaded in an earlier suit. Therefore, subsequent suits it barred under Order 2 Rule 2 of CPC.

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FACTS – The plaintiff filed a suit in High Court against the respondent since the respondent paid only part of the sale consideration and didn’t pay the balance amount. The suit was decreed. The appellant filed a subsequent suit in High Court against the respondent for a rendition of account. A single judge dismissed the suit on the grounds that the suit was barred by Order 2 Rule 2 CPC (Suit to include the whole claim) and by principle of constructive res judicata.

ISSUE – Whether the suit was barred by the principle of res judicata as the issue raised therein had been directly and substantially adjudicated between the plaintiff and defendant in a previous suit?

HELD – Object of Order 2 Rule 2 is to ensure that no defendant is sued twice in regard to the same cause of action and to prevent the plaintiff from splitting of claims and remedies based on the same cause of action. Unless the defendant pleads under Order 2 Rule 2 CPC and an issue is framed focusing the parties on that bar to the suit, the court cannot examine or reject a suit on that ground. The plaintiff should have the opportunity to explain that the second suit was based on the different cause of action.

The cause of action for the first suit was non – payment of price under the agreement of sale, whereas the cause of action for the second suit was non–settling of accounts of a dissolved partnership. The plaintiff against whom the bar of res judicata is used should have noticed about the plea and have an opportunity to put forth his arguments against the same. In this case, there was no plea of constructive res judicata. Therefore, the second suit is not barred by constructive res judicata.

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Facts: Appellant is in possession of service station created on land held by respondent 2 (Hindustan Petroleum Corporation Limited) as lessee. The dispute between appellant and respondent 1(Municipal Corporation) is a demolition of unauthorised construction in pursuance to notice u/s. 351 of Bombay Municipal Corporation Act. Appellant instituted suit before City Civil Court, challenging the validity of notice and for injunction restraining Municipal Corporation from demolishing structures. No notice has been issued to respondent 2 by Municipal Corporation in the present case. Respondent 2 applied for being impleaded as an additional defendant in the suit to which court directed appellant to add respondent 2 as a defendant. Subsequently Appellant filed Writ Petition challenging correctness of order to which the High Court dismissed Writ Petition

Issue:  Whether respondent 2 is a necessary or proper party?

Held: Proper and necessary parties, as they have interest in subject matter of litigation and presence will be necessary and proper to effectively adjudicate upon and determine the cause of action in the suit. The notice does not relate to that structure but is in relation to two chattels started to have been created by present appellant unauthorised. But Respondent 2 had no interest in these chattels and demolition of same in pursuance to notice is not a matter which affects legal rights of respondent.  No direct interest in subject matter of litigation and addition of respondent would result in a new cause of action and will widen issue. The person to be joined must be one whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.

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