The Code of Civil Procedure, Course Code: LLB, 303
The
Code of Civil Procedure, Course Code: LLB, 303
Contents
Meaning of Rejection of Plaint
Issue of Fact and Issue of Law
Materials from Which Issues May Be Formed
Misjoinder and Non-Joinder of Parties
Preliminary Decree and Final Decree
Amendment of Pleading When Refused
Remedy for dismissal under R.2 O.9
Meaning
of Return of plaint
In
pursuance of section 15 every suit is to be instituted in the court of lowest
grade competent to try it.so where the suit is instituted in a wrong court the
plaint should be returned for want of territorial, pecuniary and other
jurisdiction. In order 7 rule 10 it has been stated that the plaint shall at
any stage be returned to be presented to the Court in which the suit should
have been instituted.
Procedure
on Returning Plaint
It has
been provided in rule 10(2) of order 7 that where the plaint has been returned
the judge shall endorse thereon a) the date of its presentation b) the date of
returned c) the name of the party presenting it e) a brief statement for
returning.[1]
Remedies
on Return of plaint
Order
return of plaint is an appealable order under Or.43 r.1 (a)
Details
procedure has been provided in 406 of CRO
Case
laws 5 DLR 42[2]
Meaning
of Rejection of Plaint
In
pursuance of section 26 every suit shall be instituted by the presentation of a
plaint. After presentation of plaint the court may reject the same on under section
order 7 rule 11 on the following cases:
a)
Where it does not disclose a cause of action:
b) Where
the relief claimed is under-valued and the plaintiff required by the Court to
correct the valuation within a fixed time and fails to do so:
c) Where the relief claimed is properly
valued, but the plaint is written upon paper insufficiently stamped and the
plaintiff required by the Court to supply the requisite stamp-paper within
fixed and fails to do so:
d) Where the suit barred
by any law.
Where
a plaint is rejected the Judge shall record an order to that effect with the
reasons for such order[3]. It
was observed in Shafiq Ahmed Vs.
Mirza Muhammad Anwar Geb, 20 DLR (WP) 113 that while
rejection of plaint the court has to consider not the written statement but the
only the plaint of the plaintiff. ………………Gazi. 277
At any stage the whether the plaint may be
rejected or not it depends upon fact and circumstances of the case.It may be rejected
before or after filing of written statement. It may rejected before or after
framing issues.
Remedies Rejection
of Plaint
It was observed in Abdur Rashid Salam Vs Md
Moniruzzaman 58 DLR 298
Rule 13 of order 7 specifies that the rejection of the
plaint on any of the grounds shall not preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action. Thus plaintiff may file
fresh suit.[4] Further Order rejecting plaint is a
decree within meaning of section 2(2) and hence appeal lies against such order.
If the
plaint is rejected under rule 11(b) the plaintiff may make an application under
section 149 and 151 with fine to revive the suit.[5]
Details
procedure of rejection of plaint and remedies thereof has been provided in rule
15 of CRO and para 4 of civil Suit Instruction Manual.
Issue
of Fact and Issue of Law
Before
explaining issue it is better to define first material proposition. Material
propositions are those propositions of law or fact which a plaintiff must
allege in order to show a right to sue or a defendant must allege in order to
constitute his defense.
In
pursuance of rule 1(2) issue arises when material proposition of fact or law is
affirmed by the one party and denied by the other. Each material proposition shall form a
distinct issue[6].
Two
types of issues have been envisaged under rule 1(4) namely issue of law and
issue of fact.
Issue
of law has been defined in black law dictionary as to the matter of controversy or the differing opinion of a law.
In evidence act 1872 Issue of fact has been defined as fact in issue to
mean any fact from which, either by itself or in connection with other facts,
the existence, nonexistence, nature or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, necessarily follows.
Materials
from Which Issues May Be Formed
The Court may frame the issues from all or any of the following
materials-
(a)
Allegations made on oath by the parties or persons present on their behalf, or
by the pleaders.
(b)
Allegations made in the pleadings or in answers to interrogatories in the suit;
(c) The
contents of documents produced by the either party.
At first hearing the Court shall, after
reading the plaint and the written statements and examination of the parties
proceed to frame issues[7]. If
the court is of opinion that the case may be disposed of on an issue of law
only it may try the issue and may postpone the settlement of the issue of fact.[8]
Details
provision of issue of law and issue of fact have been enumerated in rule 132 of
CRO and para 12 of Civil Suit Instruction Manual
In
Kamleshwaram vs. Subarao it was observed that where the parties to trial fully
knowing the rival case and led all evidence not only in support of their
contention but also in refutation of other side it cannot be said that absence
of framing issues was mistrial which vitiate the proceedings.[9]
Misjoinder
and Non-Joinder of Parties
Before
explaining Misjoinder and Non-Joinder of Parties it is expedient to define
necessary parties and proper parties
are those whose presence are essential to the constitution of suit
without whom no decree can be passed at all. On the other hand proper parties
are those without whom a decree or order can be made but their presence enable
the court to adjudicate the matter more effectively and more completely.
.in
addition Non joinder has been
defined as a plea of abatement alleging that that the claimant had fail to join
all necessary parties in the action.
Meaning
of Misjoinder
In Oxford Law Dictionary misjoinder of parties has defined to
mean as an incorrect joinder of parties in an action. Where there are more plaintiffs
than one the provision of rule 1 of order 1 apply. It provides that two or more
person may be joined as plaintiff in one suit if the right to relief exist in
each plaintiff arises from same transaction and there is common question of law
and fact. If two or more person are joined as plaintiff in one suit not covered
by O. 1 R. 1 it is called as a misjoinder
of plaintiffs. And in case of defendant it is called misjoinder of
defendant
For
misjoinder of plaintiff and defendant a suit cannot be dismissed for this
reasons.
Pravakor Rao V. State, in this case some
affected person file petition but some did not file the same. It was held that
where all affected persons had not joined as parties to the petition but some
of them were joined it was held that the interest of the persons who were not
joined as parties were identical with those persons were sufficiently and well
represented. Therefore the petition was not liable for their absence.[10]
Meaning of Non-Joinder
Preliminary
Decree and Final Decree
Section 2(2) defines decree to means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy. On perusal of the explanation of the section decree may be divided in two parts namely preliminary decree and final decree.
Preliminary Decree
When
an adjudication decides the rights of the parties with regard to all or any of
the matters in controversy in the suit but does not completely dispose of the
suit, it is a preliminary decree. Explanation of section 2(2) defines preliminary
decree as-
A
decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of.
A
preliminary decree is passed in those cases in which the court has to
adjudicate upon the rights of the parties and then to stay its hand for the time
being until it is in position to pass final decree. On perusal of Section 97 an
aggrieved party can preferred appeal from preliminary decree but he is
precluded from disputing its correctness when he does not appeal from such
decree and final decree is passed. The codes provide for passing of preliminary
decrees in the following suits:
a.
Suits
for the possession and Mesne Profits; Order 20 rule 12
b.
Administration
of the estate of a deceased person; order 20 rule 13.
c.
Suits
for preemption; Order 20 Rule 14
d.
Suit
of foreclosure of a mortgage; order 34 rule 2-3
e.
Dissolution
of partnership; order 20 rule 1.
Dissenting
opinions arise from many case laws as regards whether the list is exhaustive or
not. But the correct view, which is held in Narayan Thampi vs. Narayan Iyer[11]
that the list is not exhaustive.
So, a
decree is preliminary when the court has to decide the right of the parties but
does not dispose of the case completely is called preliminary decree.
Meaning of Final Decree
A final decree is one which
completely dispose of a suit and finally settles all questions in controversy
between parties and nothing further remains to be decided. Explanation of
section 2(2) defines final decree as a decree is final when such adjudication
completely dispose of the suit.
It was
held In the matter of Shankar v. Candranath 3 SCC 413 that a decree may be
final in two ways
a.
When
within prescribed period no appeal is filed against the decree.
b.
When
the decree completely disposes of the suit.
There
may be one or more final decree in one suit.
Definition
of Pleading
Pleading
means plaint or written statement[12].
Ox ford
law dictionary defined pleading as claim form, defense or other statement of
case used in civil proceedings.
Mogha
in his book ‘Mogha’s Law of Pleading’
define pleading in the following way
Pleadings
are statement in writing drawn up and filed by each party stating what his
contention will be and giving all such details to opponent to prepare his case
in answer.
So a
plaintiff’s pleading is his plaint in which the plaintiff sets out his cause of
action all necessary particulars and defendant’s pleading is his written
statement in which the defendant deals with every fact alleged by the plaintiff
and also new fact which are in his favor.
Essential ingredients of
pleadings[13]
Rule 2 of
order 6 provides following ingredients of pleadings:
1)
Pleading
should state material facts not law
2) Pleading should not
state the evidence
3)
The
facts should be states in concise form
Form of pleadings
Form no
1-49 of appendix 1 will be used for all pleadings[14]
Details
provision have been provide in rule 17-23 of Civil Rules and Order
Amendment
of Pleading When Refused
In Ganga Bai V Vijay Kumar it was observed
that
The
power to allow an amendment is wide and may be exercised at any stage for
interest of justice. But the exercise of such discretionary power is governed
by judicial consideration, greater care and circumspection of the
court.[15]
The
court has great discretion to allow the amendment of pleading but in the
following cases the court will not allow to amend the pleading.
a)
Where
the amendment is not necessary to decide the real question in controversy.
In Edevian v. Cohen,
the application for amendment was rejected since it was not necessary to decide
the real question in controversy.
b)
Where
the amendment would introduce a totally different, new and inconsistent case.
c)
Where
the plaintiff’s suit would be wholly displaced by the defendant amendment.
Steward V the North Metropolitan
Tramways
Fact in Brief
A sued Tramway co. for damage
caused for their negligence. .the co. denied their negligence in the written
statement. After six months, the co. applied for amending the defence on the
ground that they contracted with Local Board of district and in pursuance of
the contract the liability of the company has been transferred to the Board.
Rule of law
The application should be
refused. If the court allowed the amendment, A might take action against the
board but it would be too late as being barred by limitation. Therefore a’s
suit would be wholly displaced against the co.so the amendment is not allowed.
d)
Where
it would take the legal right of the defendant which has accrued to him by
lapse of time.
Weldon V Neal
Fact in
Brief
P sued
D for slander. Later P applied to amend the plaint by adding fresh claim of
assault and false imprisonment these claims were barred at the date of
application though not barred at the time of filing suit.
Rule of
law
The
application was refused as it would take away a legal right from D (bar of
limitation) which accrued to him by lapse of time.
e)
Where
the amendment has not been made in good faith.
What Is The Remedy Of An
Aggrieved Person Who’s Suit Has Been Dismissed Under Order 9 Rule 2 Or Order 9
Rule 8 Of Code Of Civil Procedure? (Frist term 2015)
It is
fundamental rule of law that a party must have a fair and reasonable
opportunities to represent his case. And for that purpose he must have a notice
and this is condition precedent to a fair trial. Rule
2 of O 9 enacts that the suit may be dismissed where the summons is not served
on the plaintiff’s failure to pay cost for service of summons to the defendant.[16]
Remedy
for dismissal under R.2 O.9
Rule 4 of O. 9 provides the remedy when a suit is dismissed for
the failure of plaintiff to pay the cost of summons of service. In pursuance of
the rule the plaintiff may -
a) Bring a
fresh suit named or
b) May apply
to set the dismissal aside.
Further if the defendant appears in person or by his authorized
pleader in spite of such failure of the plaintiff, no such order can be made as
the wording is Shall.
Bipin
vs. Abdul 21 CWN 30[17]
In
pursuance of article 163 of limitation act period of limitation is 30 days from
the day of dismissal.[18] If
an application under O 9 R 4 is dismissed, another application lies under the
rule if it is within period of limitation. The court may allow restoration
under s. 151[19]
Lucky
v. Buddrunissa ILR 9 CAL 627[20]
Order
of dismissal is not decree as envisaged in section 2(2) of CP code and hence no
appeal lies against such order. But revision is available here.
However
when such a suit is restored notice of restoration and an opportunities is
required for proper justice.[21]
Remedy under rule 8 of O. 9
Rule 8
of order 9 enacts that where the defendant appears and the plaintiff does not
appear the court shall make an order to dismiss the suit. But if the defendant
admits the plaintiff’s claim the court will pass a decree against him upon such
admission and dismiss the same.[22]
Remedy provided in rule 9 of O. 9
Rule 9
Precludes the plaintiff from filing a fresh suit on the same cause of action
when a suit is dismissed under rule 8. But what remedy is available to the
plaintiff is to apply for an order to set the dismissal aside.
State vs. Biseswar
In proper cases section 151 may be revoked for
restoration of such application.[23]
[1] Takwani 227
[2] Gazi 275
[3] O 7 rule 12
[4] Halim90
[5] Gazi
281
[6] Rule
1(3)
[7] Rule
1(5)
[8] Rule
2of or.14
[9]
Javala 133 page
[10]
takwani 156
[11] Tak
20
[12]Rule
1 Of O. 6
[13] Halim 87
[14] Rule 3 of O. 6
[15] Tak 206
[16] Tak 266
[17] Naim 148
[18] ibid
[19] Mah744
[20] Mah 742+gazi 301
[21] Ham 56+ Gazi 301
[22] TAK 264
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