9911796707
TMI Blog2021 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... se is the proper generic term. Its construction must and has to be decided keeping in mind the facts and circumstances of each case. The steps taken in the suits are proper in law and on facts of the case, they call for no need to retrace the order passed by the learned trial Court. Thus, the Court in no uncertain terms has held that there could be partial striking out of pleadings but not rejection of the plaint. To bring out the cause of action, a plaint must state the necessary conditions to maintain a suit. The merits of those conditions and/or terms is inconsequential at the stage for consideration of any application at the instance of the defendants for rejection of the plaint. What evidence the plaintiff would lead to prove his case or what probable defense the defendants would raised is not the concern of the Court at that initial stage of the proceedings. The Court below committed an error in rejecting the plaint at the very threshold i.e. even before issuing the summons - Suit is ordered to be restored to its original file. The Court shall now proceed to issue summons to the defendants and thereafter proceed in accordance with law - Appeal allowed. - R/FIRST APPE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016-17. On none of the cheques any date was written. It is the case of the plaintiff that such cheques were issued by him to the defendants by way of security. However, the requisite amount later came to be paid to the defendants and the defendants were expected to return those cheques issued by way of security. 2.3 It is the case of the plaintiff that such cheques are now being misused by the defendants and prosecution has also been instituted for the dishonour of those cheques by filing complaints under Section 138 of the Negotiable Instruments Act. The plaintiff wants to seek a declaration that the cheques- in-question were drawn by him in favour of the defendants by way of security and such instruments be declared as void or voidable or without any lawful consideration etc. The plaintiff also seeks relief to the extent that the defendants shall not take any action against the plaintiff by filing any criminal complaint etc. 2.4 Upon institution of the suit, the Court below rejected the plaint holding as under: 1. The present matter was kept for hearing on admission stage to decide question of maintainability of the present suit filed by the plaintiff against the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or perpetual injunction against the defendants, it seems important to mention Section 41 (d) of the Specific Relief Act, 1963. It is a settled position of law by way of Section 41 (d) of the Specific Relief Act, 1963 that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in criminal matter. In the present case, the plaintiff had prayed for perpetual injunction against the defendants so that they may not file any criminal proceedings against the plaintiff, which is not good in law. It has been held in the case of Shipping Corporationo of India Ltd. vs. Machado Brothers Others reported in AIR 2004 SC 2093, that continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires such suit to be disposed of as having become infructuous. The present suit is thus liable to be dismissed on the ground of being infructuous as well. 4. Keeping in view the aforesaid observations, it is held that the present suit is not maintainable in its present form. As such, the same stands disposed of as dismissed at admission stage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd complaints have been filed under Section 138 of the Negotiable Instruments Act for the dishonour of the cheques. Mr. Dave invited the attention of this Court to Section 4 of the Specific Relief Act, 1963. Section 4 provides that the specific relief can be granted only for enforcing individual civil rights and not for enforcing penal laws. According to Mr. Dave, none of the civil rights could be said to have been infringed in the present case so as to make the suit maintainable in the law. Mr. Dave also invited the attention of this Court to Section 41(d) of the Act, 1963. Section 41 stipulates when injunction should not be granted. Sub clause (d) to Section 41 says that injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter. In such circumstances referred to above, Mr. Dave prays that there being no merit in the present appeal, the same be dismissed. ANALYSIS:- 5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Court below committed any error in rejecting the plaint. 6. Before a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instrument may be vexatiously or injuriously used by the defendants against the plaintiff when evidence to impeach it may be lost or that it may throw a cloud or suspicion over his title or interest. Section 31 is based upon the same principle. 9.1 The provisions of Section 39 of the Old Act corresponding to the Section 31 of the Act, 1963 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument. (1) the instrument is void or voidable against the plaintiff; (2) the plaintiff may reasonably apprehends serious injury by the instrument being left outstanding; (3) in the circumstances of the case, the Court considers it proper to grant this relief of preventive justice. 9.2 As the principle is one of potential mischief, by the instrument remaining outstanding, it stands to reason that the executant of the instrument should be either the plaintiff or a person who can in certain circumstances bind him. 10. Section 31 of the Act, 1963, has been interpreted in few judgments. We may give reference of those judgments as under: 10.1 AIR 1939 Madras 894, Vellayya Konar (Died) And Anr. vs Ramaswami Konar And Anr., 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it may throw a cloud or suspicion over his title or interest. Section 39 of the Specific Relief Act is based upon1 the same principle, and under that section three points have to be borne in mind: (1) The written instrument in question is either void or voidable as against the plaintiff (2) who may reasonably apprehend serious injury from the instrument being left outstanding (3) in view of all the circumstances of the case the Court considers it reasonable and proper to administer the protective and preventive justice asked for. The relief the Court can grant is of a limited character. The reliefs are (1) adjudge that the instrument is void or voidable (2) order it to be delivered up and cancelled. 10.5 The ratio of the above referred Bombay High Court judgment is that if an instrument is being used unfairly by any of the parties to a transaction which is causing harm or is intended to cause harm to the aggrieved party who has approached the Court then such instrument may be cancelled at the discretion of the Court for the purpose of serving justice. The cancellation of an instrument is a protective measure under the Act, 1963 for the protection of such parties who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 7 Rule 11 (d) the Civil Procedure Code, the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint. 13. We may also refer to a decision of the Punjab and Haryana High Court in the case of ABN AMRO Bank Vs. the Punjab urban Planning and Development Authority, reported in AIR 2000 P H 44, wherein Honourable Mr. Justice Swatanter Kumar (as his lordship then was) observed as under: 21. The right of the plaintiff bank, thus, to recover the amount to the above limited extent, even if it is assumed that the letter dated 7th July, 1993, is valid and proper cannot be frustrated, the amount being less than the amount claimed in the plaint. Thus, in any case the plaint to the limited extent discloses cause of action in favour of the plaintiff bank and against the defendant. What will be the merit of this claim is again a question to be gone into by the Court at the appropriate stage and upon conclusion of evidence. Partial rejection of a plaint is against not permissible. The provisions of Order 7, Rule 11 of the Code of Civil Procedure are intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in no uncertain terms has held that there could be partial striking out of pleadings but not rejection of the plaint. To bring out the cause of action, a plaint must state the necessary conditions to maintain a suit. The merits of those conditions and/or terms is inconsequential at the stage for consideration of any application at the instance of the defendants for rejection of the plaint. What evidence the plaintiff would lead to prove his case or what probable defense the defendants would raised is not the concern of the Court at that initial stage of the proceedings. 14. In such circumstances referred to above, we have no hesitation in coming to the conclusion that the Court below committed an error in rejecting the plaint at the very threshold i.e. even before issuing the summons. We do not say for a moment that plaint cannot be rejected without issuing summons to the defendants. Plaint can be rejected at the threshold even before the summons is issued to the defendants. However, in the case on hand, the Court below seems to have overlooked Section 31 of the Act, 1963 and seems to have got confused with Section 41(d) of the Act. The Court below seems to have rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
