Report No. 27

Order VII, rule 1

The Madras Amendment to Order VII, rule 1, to the effect that the plaint should state the age of the minor, has been considered. Such an amendment would not be of much practical use for ordinary cases and has not therefore been adopted.1

1. As to minor plaintiffs, see Order 32, rule 2.

Order VII, rule 2

Under the Punjab Amendment, where the suit is for movables in the possession of the defendants or for debts whose value cannot be estimated, the plaint shall state approximately the amount or value.

It is considered unnecessary to adopt such a provision.

Order VII, rule 6

1. Where the ground of exemption from limitation is not stated in the plaint, the question is whether it can be raised later (without amendment). The Madras view1-2-3 is that it cannot. But that High Court has also held, that the ground of exemption need not be stated before the occasion for claiming exemption arises4.

2. Another question is whether, when one ground is stated, plaintiff can take another and consistent ground5.

One view is that when one acknowledgment is pleaded, another cannot be set up6. This was the Calcutta view, but in later cases of the same High Court, a liberal view has been taken7. But the Madras view is, that a new ground can be urged only after amendment8-9-10.

The Bombay view is that another and consistent ground can be set up11.

But can an inconsistent ground be pleaded? A clerical error in a Bombay judgment seems to have misled some courts into thinking that even an inconsistent plea can be taken for claiming exemption from limitation12.

3. A specific claim to exemption is, of course, unnecessary if the facts pleaded show the exemption13.

4. Further, if the facts justifying exemption are patent on the face of the record, they need not be pleaded14.

5. The general rule is that the exemption must be pleaded15.

6. To summarise the position,

(i) the strict provision embodied in Order VII, rule 6 has been administered liberally by most High Courts(excepting, it would seem, the Madras High Court);

(ii) there is some confusion about whether the extra grounds to be set up may be "consistent", or may even be "inconsistent".

7. The adoption of the following proviso at the end of the rule to clarify the position has been considered-

"Provided that the court may permit the plaintiff to rely on any ground of exemption from such law, not shown in the plaint, being a ground which is not inconsistent with the allegations in the plaint."

(The burden of proof regarding limitation is on the plaintiff)16.

It is, however, felt that no change is necessary in view of the decisions of the majority of the High Courts.

1. Ramaswami v. Anaiya, AIR 1936 Mad 545.

2. Palani v. Sevugan, AIR 1933 Mad 395 (Comis J.) (reviews the case-law).

3. Mahadeva v. Marulai, AIR 1933 Mad 674 (Walsh J.).

4. Gopalaswami v. Narayanswami, ILR 1944 Mad 572: AIR 1944 Mad 65 (67) dissenting from Gulam Hassan v. Mohamed Ali, (1910) ILR 34 Born 540.

5. See Parmeshri v. Fakiria, ILR 2 Lab 13: AIR 1922 Lah 230.

6. Jogeshwar v. Raj Narain, (1904) ILR 31 Cal 195 (201), (Maclean C.J., Hill and Stevens JJ.) (Under old section 50).

7. See the Calcutta cases discussed in AIR 1922 Lah 230. Also see Gangadhar v. Khaja Abdul, (1909) 14 CWN 128.

8. AIR 1933 Mad 874.

9. MR 1936 Mad 545.

10. In Bojjana v. Kristama, AIR 1947 Mad 268 (271), para. 9 (Wadsworth O.C.J. and Govindarajachari J.); this principle was applied to an application to set aside an execution sale.

11. Percy F. Fisher v. Ardeshir Hormasji, 37 Born LR 165.

12. See Rustomji Limitation (1958), p. 25, foot-notes (d) and (e).

13. See Raghunath v. Syed Samad, (1908) 12 CWN 617, followed in AIR 1959 Ker 243.

14. See Rustomji Limitation, 1958, p. 25, bottom.

15. Kalyan Mal v. Ahmad Uddin, AIR 1934 PC 208 (210).

16. Krishna Roy v. Tinkari, AIR 1951 Cal 198 (199).

Order VII, rule 9

1. Under Order VII, rule 9, as it stands at present, copies of the plaint are to be filed on the admission of the plaint. The Madras and Andhra Pradesh Amendments provide that they should be filed along with the plaint. The Calcutta Amendment, Order VII, rule 9 (1A) provides that the copies should be filed with the plaint, but the Calcutta Amendment to Order VII, rule 11 gives power to the court to grant further time. It is considered, that the copies should be filed within such time as the court may fix or extend.

2. It is also proposed to make it clear, that the plaintiff should pay the court-fees and charges for the service of the summons within the time allowed by the court. Cf. the Calcutta Amendment to Order VII, rule 9, on this point. Necessary amendment has been proposed.