9911796707
TMI Blog1994 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... bay while the petitioner No. 2 is the Manager of Air Travels Agency known as Thakkar Travel Services in, Goa. It is the case of the respondents in the suit that they had travelled by the air flight of KLM Royal Dutch Airlines and because no proper service was rendered to them recovery of damages is required to be sought. It appears that after the petitioners were served with the summons for the purpose of filing their written statement they made, on three occasions, applications praying for adjournment to file their written statement on the ground that they had to collect information from several places to which the respondents had travelled to prepare their pleadings. The record shows that the petitioners received the summons in the month of September 1989 to file their written statement on 19-10-1989 and-the applications for adjournment are dated 19-10-1989, 6-12-1989 and 17-1-1990. On the last date the matter was adjourned by the Court for the petitioners to file their written statement on 19-2-1990. However, on that day the trial Judge was on leave and the matter was again fixed for petitioners' written statement on 10-4-1990. On that day the petitioners move ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such rejection ought to be made. It does not say that such objection shall be raised by the defendant only while filing the written statement. The learned counsel contended that Rule 11 is included in Order 7 which deals with the plaint and not with the written statement. A perusal of Rule 11 would show that the trial Court suo motu can reject the plaint if any of the predicates of Rule 11 are satisfied and also that this rejection can be done at the instance of the defendant who while doing so is only alerting or assisting the Court to seek a specific compliance of the legal requirements. 5. There is considerable merit in this submission of the learned counsel. A bare reading of Rule 11 of Order 7 shows chat this is a provision which enables the defendant to raise like a preliminary objection against the very maintainability of the suit on account of a formal defect of the plaint consequent upon the lacking of a substantial requirement prescribed by the law for the purpose of drafting a plaint in a suit. The defendant appears thus entitled by virtue of the said provision to raise the objection even before he chooses to contest the suit by leading his defences again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final decision on merits. I am entirely inclined to agree with this contention of the learned counsel which seems to find full support in the law. Besides admittedly in the instant case the petitioners' application raising objections against the plaint was not decided by the trial Court on its merits and instead they were thrown out merely on the ground that such application was not maintainable. Therefore Mr. Usgaonkar has submitted that in case the petitioners succeed in this petition a direction may be given to the trial Court to decide the application. For that matter the plaint need not be rejected at this stage and it is for the trial Court to decide whether the plaint is to be rejected or not. 6. Mr. Prabhudessai, learned counsel for, the respondents, although fairly conceding that such direction may be given if this Court takes the view propounded by the learned petitioners' counsel has however, made some grievance that the petitioners while filing the application under Rule 11, Order 7, that also after several adjournments seeking time to prepare the written statement, have only indulged in an exercise of protracting the litigation to the detrimen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation filed by the petitioners was not on the ground of non-maintainability of the cause of action but instead on the ground of non-disclosure of the cause of action in terms of clause (a) of Rule 11 of Order 7, C.P.C. Being so all the submissions advanced by the learned counsel on the point are to be discarded as devoid of any substance. The further submission of Mr. Prabhudessai that any grievance relating to non-disclosure of the cause of action in the respondent plaint would amount to their raising a preliminary issue which ought to have been taken in their written statement because it is a part of their defence is also bound to be summarily rejected as it goes against the very letter and spirit of Order 13, Rule 2(2) of the C.P.C. I have already held on the basis of such provision that a preliminary issue would be only an issue of law which has to be tried as such only in respect of a point of lack of jurisdiction of the Court or with regard to a bar to the suit created by any law for the time being in force. Such defence pleas and to be raised in the written statement while an application under Order 7, Rule 11 deals only with an infirmity arising in the plaint. Therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents' learned counsel, 1 may advert to the authorities relied by Mr. Usgaonkar in support of his proposition that the remedy of Rule 11 of Order 7 is a totally independent remedy available to the defendant to challenge the plaint on account of lacking of any of the legal requirements prescribed in Rule 1 of Order 7 of C.P.C. irrespective of his right to contest the suit and that the law does not contemplate at what stage such objection should be raised or does not say that it should be raised only along with the written statement. The learned counsel has firstly invited my attention to the case of Smt. Patasibhai v. Ratanlal [1990]1SCR172 which while dealing with Order 7, Rule 11 and rejection of the plaint on the ground that no cause of action was disclosed has held that mere issuance of summons by the trial Court does not require that the trial should proceed even when no triable issue is shown to arise. The question involved in the case was the maintainability of the suit which had given rise to the appeal. The appellants contended that the suit was not maintainable even on the plaint averments. The trial Court held the suit to be maintainable and the High Court dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of the applicability of Order 7, Rule 11 of C.P.C. In the first case of Dhartipakar Agarwal, [1987]3SCR369 the Supreme Court has observed that it is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defect. If the Court on examination of the plaint finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order 6, Rule 16 itself empowers the Court to strike out the pleadings at any stage of the proceedings. It may even be before the filing of the written statement by the defendant. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarass and delay the proceedings, the Court need not wait for the filing of the written statement. Instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order 7, Rule 11. Thus after striking out the pleadings, if the Court finds that no cause of action remains to be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion a defendant is permitted to take objection even assuming that such course does not contravene any provision of law it may however lead to undesirable result and the cantankerous defendant may go on filing one application after other in raising all sorts of objections and inviting the trial Court to decide those applications without filing his written statement. However, a bare perusal of this judgment indicates that the same was passed on the peculiar facts of the case, namely, the non-maintainability of the suit on the ground that the notice required to be issued under Section 281A of the Income Tax Act was defective and not in accordance with law. Admittedly none of these predicates are demanded in Rule 11 of Order 7 of C.P.C. and therefore the decision does not appear to be attracted in the instant case. Besides this ruling is to be held as overruled by the judgments of the Supreme Court cited above which in express words have made it clear that no written statement was required to be filed by the defendant so as to avail of the remedy and raise objection against the non-maintainability of the suit and seek the rejection of the plaint under Rule 11 of Order 7 of the C.P.C. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the notice of the Supreme Court should be deemed as still holding a good law. In that case the learned counsel submitted that the decisions of the High Court cited before the Supreme Court shall be held as having been expressly overruled and the decisions which were not placed before the Supreme Court should be held also as impliedly overruled by the Supreme Court. 14. There is indeed a valid point in this submission by the learned counsel and therefore, in my view, I do not think that I am required to follow in this case the 1986 Bombay judgment which seems to have been clearly overruled by the aforesaid decisions of the Supreme Court relied by the learned petitioners' counsel. 15. Besides Mr. Usgaonkar has also submitted that a cause of action is always to be seen in the context of the plaint itself and on a mere perusal of its pleadings assuming that the facts averred in the pleadings are true. Therefore it is not necessary for the defendant to file a written statement nor raise an objection under Rule 11 of Order 7 since this type of objection goes to the root of the very maintainability of the suit. 16. In my judgment the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
