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Report No. 54

Recommendation

7.12. But we think that it is desirable that the position should be clarified. There should be no objection to the court being given a power to permit the plaintiff to rely on a new ground of exemption, so long as that ground is not inconsistent with the allegations in the plaint. The insertion of the following proviso at the end of Order 7, rule 6, is, therefore, recommended:-

"Provided that the court may permit the plaintiff to claim exemption from such law on any ground not shown in the plaint, if the ground is not inconsistent with the allegations in the plaint."

Order 7, rule 10

7.13. Order 7, rule 10 provides that the plaint shall, "at any stage of the suit", be returned to the plaintiff, for presentation to the court in which the suit should have been instituted, if the court has no jurisdiction to try the suit. The words 'at any stage of the suit' have raised one question. Where the suit has been already tried and a judgment delivered, can the plaint be 'returned? Does the "stage of suit" still continue? When, for example, it is found either in appeal or in revision that the decree was without jurisdiction, can the appellate or revisional court return the plaint, on the theory that an appeal or revision is a kind of continuation of the suit? The authorities are conflicting on the point.

7.14. In a Calcutta case1, the plaintiff sought for a return of the plaint in similar circumstances. But, the respondent's counsel argued that where there had been a trial and a judgment on a plaint, the plaint could no longer be returned. The Court held that the plaint could no longer be returned.

1. Gopi Krishna v. Anil Bose, AIR 1965 Cal 59.

7.15. In an earlier Calcutta decision1, it had been observed that the plaint had already merged in a decree, and "it is inconceivable how it struck the munsiff that the plaint could be returned at that stage". That was a suit for partition. The property was valued at a certain figure, and a preliminary decree was passed. But, thereafter, it was found, at the time of the final decree, that the suit was under-valued. On those facts, it was held that it was not open to the Court, if the value of the property exceeded the pecuniary limits of the jurisdiction of the court, to declare the preliminary decree a nullity and to return the plaint for presentation to the competent court.

1. Ratikanta Myore v. Sanstan Baidya, AIR 1930 Cal 147 (B.B. Ghosh and S.K. Ghosh JJ.).

7.16. It was urged in the later Calcutta case that where the plaint (or rather, the cause of action) has merged in a judgment or decree, the appeal court (or the revisional court) can always make an order setting aside the judgment and directing the plaint to be presented to the proper court. But it was held that normally, having regard to the context and juxtaposition of Order 7, rule 10, the question of return of plaint should be considered at a stage where the judgment has not been delivered. It is at the stage where the plaint is filed, and before the summons in the suit had issued, that the plaint is normally returned. In fact, Order 7, dealing with the plaint, contextually comes before Order 8, which deals with the written statement. Sub-rule (2) of Order 7, rule 10, would also seem to indicate that it is the initial stage that is being considered under this provision, and not the stage when the suit proceeded to a trial and the judgment already delivered.

7.17. It was observed further, that the words "presentation", "return" and "endorsement" of the reasons as envisaged under Order 7, rule 10(2) seem to indicate that the legislature is contemplating the stage of such return long before the trial of the plaint and before the delivery of the judgment on such a plaint. The small causes court judge should have acted under Order 7, rule 10 on this plaint when it was presented to him, and should have returned it for presentation to the proper court. The appropriate course for the High Court should be to set aside the judgment, and not to order return of the plaint for presentation to the proper court.

7.18. Some other High Courts assume1 that a wider interpretation is the correct one.

1. (a) Straw Products Ltd. v. Bhopal Municipality, AIR 1959 MP 253 (255), para. 11.

(b) Ram Adhin v. Gulzari Singh, AIR 1946 Oudh 116 (118).

7.19. In the above state of the case-law, a clarification is desirable. Dismissal of the suit for want of jurisdiction, though an easier course, is bound to lead to hardship in respect of court-fees and limitation. It will be more convenient if a provision is added to the effect that the power under Order 7, rule 10, can be exercised by the Appellate Court or by the Revisional Court. As regards the situation where a preliminary decree has already been passed, we do not think that it would be appropriate to provide for return of the plaint by the court of first instance.

Recommendation to amend Order 7, rule 10(1)

7.20. Accordingly, we recommend that the following Explanation should be inserted below Order 7, rule 10(1):-

"Explanation-A Court of appeal or revision may direct the return of a plaint under this rule, notwithstanding that a decree had been passed in the suit."



The Code of Civil Procedure, 1908 Back




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