Nip The Evil In The Bud- Says Order 7 Rule 11
Avnish Mittal, Advocate
Punjab & Haryana High Court, Chandigarh
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Date : 11/08/2020 - Location : House No. 115, Sector 16-A, Chandigarh
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Nip The Evil In The Bud- Says Order 7 Rule 11A clear Rejection is always better than a fake promise. A "Suit", is a proceeding by a party or parties against other/s in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "suit" is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss or wronged, as a result of a defendant's actions, demands a legal or equitable remedy, through his plaint. The defendant is required to respond to the plaintiff's complaint by filing a written statement to all the averments contained in the plaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes. A Law Suit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also, in certain cases, enable the State to be treated as if it were a private party in a civil case, as plaintiff, or defendant, regarding an injury, or may provide the State with a civil cause of action to enforce certain laws. The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the procedure adopted for the same is governed by the principles of law, as contained in the Code of Civil procedure, 1908. A suit begins when a document, known as a plaint, is filed with the court. A plaint should explicitly state the exact cause of action and, even when one or more plaintiffs seek/s damages or equitable relief from one or more stated defendants, should state the relevant factual allegations supporting the legal claims brought by the plaintiffs, pertaining to each of the plaintiffs. As the introductory pleading, a plaint is the most important step in a civil case, because it sets the factual and legal foundation for the entirety of the case. Thus, the same needs to have the exact details of relief, and grief for which the plaintiff is suing the defendant. The filing of a Plaint is considered a sine qua non for institution of a Suit. It is basically a statement of claims, treated as a repository of facts by the Court. Thus, every Court is obligated to analyze the Plaint, and decide whether it is fit to be proceeded further or not. Order II of the Code of Civil Procedure, 1908, lays down the various principles governing the Frame of the Suit, and the procedure to be followed therein. Thus, once a suit is filed then the contents of the plaint must contain the whole of the claim as envisaged under order 2 rule 2, and must also be in complete compliance with the provisions of order 2. Checking of Plaint by the Court is essentially a formal pre-admission scrutiny of the pleadings filed in the Indian law courts. The process is aimed at filtering out non-jurisdictional cases, and getting other formal defects, such as computation of Court fees and stamping of instruments, annexing spot map to the Plaint etc., rectified before the case is taken up for further hearing. Many of such formal defects and objections are taken care by the court registry where the case is filed, and would keep the same `in defect' and not place the same for hearing before the court till the same is removed. The process of Civil litigation, in Indian context, is regularized by the provisions of Code of Civil Procedure (India). The code is silent about any comprehensive procedure to be adopted for Plaint checking. However, there are various circulars issued by the different High Courts to regulate the intervention of office, in fault-finding process, at different stages of the suits, in compliance with the provisions of Order VII of the Code of Civil Procedure. Once the suit is allowed to proceed, then the court is obliged with the duty that, before it proceeds further, to appropriately inspect the plaint, to decide, on the question as to whether it ought to be returned, or rejected, and examine as to the plaint is maintainable or barred by any law, so it cannot proceed further. It is the court's obligation to take into consideration, different materials placed before it at that juncture. Order VII Rule 11 of CPC deals with all such situations, where plaint ought to be rejected, at that stage only, on the basis of such material placed before the court. Order VII Rule 11 of the Code of Civil Procedure, lays down the concept of rejection of plaint, by the court, in specific circumstances and various conditions. Such a decision may be taken either Suo moto or upon a formal application made by the defendant for rejecting the plaint. It is mandatory for the court, before it proceeds further on the lis to give a decision upon the application for dismissal of the plaint, under Order VII rule 11. The object is based upon the principle that a litigant cannot be forced to file a written statement, on a frivolous litigation, where the court has no jurisdiction or plaint does not disclose any cause of action or is otherwise defective or barred by any law. It has been held by the court time and again that the remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, only on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. Order VII Rule 11 Code of Civil Procedure 1908 lays down as under:
11. Rejection of plaint: - The plaint shall be rejected in the following cases: -
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of Rule 9;
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.A bare reading of the above provision of Order 7 rule 11 shows that the plaint can be rejected by the court if it appears from the contents of the plaint that the same is barred by any law, undervalued, insufficiently stamped, not filed in duplicate or does not specify any cause of action. The court must give a meaningful reading to the plaint and if it finds that it is manifestly vexatious or meritless in the sense of not disclosing the clear right to suit, the court may exercise its power under Order 7 rule 11 of the code of civil procedure 1908, to reject the plaint. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or even after issuing summons to the defendant, or before conclusion of the trial, as held by the Supreme Court in the judgment of Saleem Bhai v. State of Maharashtra. 2003(1) SCC 557. If found to be deficient of any of the above-mentioned factors, a Plaint may be rejected by the Court of its own motion or upon filing of an application in that behalf by the opposite party, at any stage of the proceedings, before conclusion of the trial. It would not matter, even if the issues are already framed in the suit, and the case is at an advanced stage. In Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, it was held by the Supreme Court that:
"The Trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."Thus, a plaint can be rejected if: -
• It does not disclose a Cause of Action: - A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, declaration of title, or recovery). The legal document which carries a claim is often called a 'statement of claim' in English law, or a 'plaint' in Indian law. The word cause of action has not been explicitly defined in the code of civil procedure 1908. However, there are various rules and orders wherefrom the meaning of the same can be gathered. As per Section 20 of the Civil Procedure Code, 1908, "cause of action" suggests any violation of a legal right that must be produced in favor of the plaintiff to substantiate his claim. "Cause of action" also means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.In T. Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC 467 the Supreme Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: -
"5. ...The learned Munsiff must remember that if on a meaningful -not formal -reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing ..."In Azhar Hussain v. Rajiv Gandhi 1986 SCC Supp. 315, the Supreme Court held that:
"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I& Anr. (2004) 9 SCC 512, the Supreme Court held that: -
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."In Om Prakash Srivastava v. Union of India and Anr., 2006 6 SCC 207, it was further held by the Supreme Court that:
"Cause of action" means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself. Compendiously, as noted above, the expression means any fact that the plaintiff would need to assert, if violated, to maintain his right to the Court's judgment. Every circumstance that is required to be established, as distinguished from every piece of evidence that is necessary, to prove that every fact is part of "cause of action."In Swamy Atmanand v. Sri Ramakrishna Tapovanam 2005 (10) SCC 51, the Supreme Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded".However, if, by clever drafting of the plaint, the document created the illusion of a cause of action, the Supreme Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal (2017) 13 SCC 174 has observed that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The basis of the same being that the Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court. Thus, the plaintiff in order to be successful has to demonstrate his cause of action for the breach of which he has initiated the civil suit. He must demonstrate from the plaint that:
• That there existed a legal obligation or a right;
• The act of the defendant resulted in breach of such right or obligation;
• The reason for such a breach; and
• The plaintiff has suffered a legal loss because of this breach.Once no such cause of action is apparent from the plaint, then under the provisions of order 7 rule 11 the plaint shall be rejected by the court. • Where the Relief claimed is Undervalued: -If it is brought to the knowledge of the court, that the valuation of the suit is less or is fabricated or baseless, the court may order the plaintiff to re-evaluate the amount and may allow sufficient time for the correction. However, if despite such time given to do the needful, the plaintiff fails to comply with such directions then the court invoking the provisions of order 7 rule 11, shall reject the plaint. However, it was held by the Supreme Court in Meenakshi Sundaram Chettiar v. Venkatachalam Chettiar, 1979 AIR SC 989, that: -
"This section casts a duty on the Court to reject the Plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the Plaintiff in a Suit for accounts is undervalued the Plaint is liable to be rejected. It is therefore necessary that the Plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. The Supreme Court further noted that in Suit for accounts, a Plaintiff may not able to ascertain the exact amount for the purpose of valuation of the Suit. In this regard it clarified that;
In coming to the conclusion that the Suit is undervalued the Court will have to take into account that in a Suit for accounts the Plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount, he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The Plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chenchuram Reddy v. Kanupuru Chenchurami Reddy (ILR (1969) Andh Pra 1042), after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under-estimation."• Where the relief is properly valued but the plaint if written on an insufficiently stamped paper: -
Every plaint must be appropriately stamped for the reasons for the court fees under the Court Fee Act, 1870. If the plaint is not sufficiently stamped, the court either on its own or on an application so made by the defendant, may grant an opportunity to the plaintiff to fill in the deficiency of the stamp so fixed, but if despite such an opportunity the plaintiff chooses not to make up the same then again the court shall reject the plaint under the provisions of order 7 rule 11.Though both the above said conditions are contained clearly in order 7 rule 11 for the purpose of rejection of plaint but in order to save the plaintiff of any bona-fide mistake that he might have committed while filing the plaint, the court may grant an opportunity to the plaintiff to make up for such deficiency before it chooses to reject the plaint. • Where the Suit appears from the statement to be barred by any law: Where from the pleadings of the plaintiff and the contents so contained there-in it is apparent that the suit so filed by him is not legally maintainable, the same being barred by any law then in such circumstances the court shall reject the plaint without proceeding further with the case. The bar so created shall also involve the suits which are apparently filed beyond limitation. However, if the question of limitation relates to the merits of the case, the same will be decided with other issues, and not at the outset and shall not be a ground for rejection of plaint. A three-Judge Bench of the Supreme Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 has observed that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr (2011) 9 SCC 126.,the Supreme Court has held that the use of the word `first' between the words `sue' and `accrued', would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued. In Raghwendra Sharan Singh v. Ram Prasanna Singh, AIR 2019 SC 1430, the Supreme Court held that: -
"Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7, Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7, Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift......... Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7, Rule 11 of the CPC."It may also be noted that like limitation, there may be many other legal bars for a civil suit to proceed. Many of the special statutes like the Sarfaesi Act, 2002, Village Common Lands Act etc. confer a exclusive jurisdiction on special courts and tribunals and expressly bar the jurisdiction of civil courts with regard to the disputes/subject matters mentioned therein, in all these circumstances the court while invoking the provisions of order 7 rule 11 can reject the plaint. The same shall also apply to a set of cases where a notice under section 80 CPC is mandatory and the same is not given. However, where an exemption is pleaded in the plaint and the circumstances are mentioned explaining why the same is not required then in such circumstances the court may take all these factors while deciding an application under order 7 rule 11. Another set of circumstances maybe where the plaintiff has pleaded fraud, misrepresentation, breach of contract but the entirety of the plaint may not prima facie establish the same, in such a situation the court shall not reject the plaint under order 7 rule 11 as the same requires evidence of factual as well as legal aspect to be led by the plaintiff in support of his assertions. Thus, the court shall proceed with the suit in such situation without rejecting the plaint on these factual aspects. • Where the plaint is not filed in duplicate: - where the plaintiff who has instituted a suit does not file the plaint in duplicate then the court shall reject the plaint under order 7 rule 11. Thus, in any suit to be filed before the civil court it is obligatory for the plaintiff to file the plaint in duplicate. The said requirement was invoked in order 7 rule 11 (e) by an amendment of 1999 in the code of civil procedure. • Where the plaintiff fails to comply with the provisions of rule 9 : - Clause (f) of Rule 11 states that where the Plaintiff fails to comply with the provisions of Rule 9 wherein it is stated that the process fee and the copies of the Plaint are to be filed within seven days from the date of order of summons on the Defendant, the Plaint shall be rejected. This provision was again invoked by 1999 amendment in CPC with a purpose that the plaintiff shall be more vigilant in pursuing his litigation without resulting in wasting of the time of the court.
• In a recent judgement of the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) through Lrs, Civil Appeal No. 9519 of 2019 decided on 9th July 2020, the court while explaining the principles of Order VII Rule 11 in detail held that:
• Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
• The documents filed along with the plaint in consonance with the provisions of order VII rule 14, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
• At the stage of deciding an application under order 7 rule 11, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
• The test for rejecting a plaint under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.
• The plaint has to be construed as it stands without any addition or subtraction of any words. If the allegation in the plaint show a cause of action the court cannot embark upon an enquiry to test the correctness of those averments.
• The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.
• Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.
• The provisions of Order VII Rule 11 are mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out.Thus, from the above it is clear that the provisions of Order VII Rule 11 are mandatory in nature, and are implemented with a purpose so as to save vexatious litigation and save the time of the court, and also to prevent the defendant from unnecessarily defend a claim that has no legal basis to stand. The court may after analysing its contents and the documents placed along with it has to be either accept or reject the plaint as a whole and not in part. The underlying principle of law for invoking these provisions is that that bogus litigation should end at the earliest. The provisions, as under order VII Rule 11, or its interpretation may not be exhaustive and may depend on the facts and circumstances of each case, as compared with the others. However, one of the basic requirements to keep in mind, while adjudicating the plaint in terms of order 7 rule 11 is that the court shall only consider the allegations in the plaint and shall not advert to the defence raised by the defendant. If, the plaint is rejected under the provisions of order VII Rule 11, then the same shall be treated as a decree, under the definition clause given under section 2(2) of the Code of Civil Procedure, and the remedy before the plaintiff, whose plaint has been rejected is to file an appeal against the same, and no further claim with regard to the same cause of action shall be entertained by the court. However, if an application under Order VII Rule 11 is dismissed and the suit is allowed to proceed then the remedy available with the defendant, who has filed that application for rejection of plaint is to challenge that order of dismissal by way of revision petition, as the same is in the form of an interlocutory order. The underlying principle of law is that Courts must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court and in case the court finds any claim to be so, than without prolonging the litigation further it shall "Nip the Evil in the Bud" by rejecting the plaint. (The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)
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