Report No. 54
Recommendation to insert Order 7, rule 10A, etc.
7.21.and 7.22. We are, further, of the view that in order to avoid delay, the court returning the plaint should fix a date for the appearance of the parties in the new court. We recommend the insertion of following rules for this purpose:-
"10A. (1) Where, in any suit, after the defendant has appeared, the court is of the view that the plaint should be returned under rule 10, it shall before doing so, inform the plaintiff, and the plaintiff shall thereupon be entitled to make an application to the Court-
(a) intimating that, on return of the plaint, he proposes to present it to the court in which it should have been instituted, to be specified in the application;
(b) praying that the court may fix a date for the appearance of the parties in the said court; and
(c) requesting that notice of the date so fixed may be given to him and to the defendant.
(2) Where an application is made under sub-rule (1), the court shall, before returning the plaint-
(a) fix a date for the purpose mentioned in clause (b) of that sub-rule; and
(b) give to the plaintiff and to the defendant such notice as is referred to in clause (c) of that sub-rule; and where such notice is given:
(i) it shall not be necessary for the Court specified in the application, on presentation of the plaint in that Court, to serve the defendant with a summons for appearance in the suit instituted by presenting that plaint, unless that court, for reasons to be recorded, otherwise directs; and
(ii) the said notice shall be deemed to be a summons for appearance of the defendant on The date so fixed in the court mentioned in the notice.
(3) Where the plaintiff has made an application under sub-rule (1) and the application has been granted, he shall not be entitled to appeal against the order returning the plaint.
10B. (1) Where an order directing that a plaint should be returned under rule 10 is proposed to be confirmed by a court in appeal, or where a court hearing an appeal is of the view that the plaint should be returned under rule 10, the court (hereinafter referred to as the court of appeal) shall, before passing a final order, inform the plaintiff, and the plaintiff shall thereupon be entitled to make an application to the court-
(a) requesting that instead of the plaint being returned, suit may be transferred to the court in which it should have been instituted (hereinafter referred to as "the proper court"), whether within or without the State;
(b) praying that the court may fix a date for the appearance of the parties in the said court; and
(c) requesting that notice of the date so fixed may be given to him and to the defendant.
(2) Where an application is made under sub-rule (1), the court of appeal shall, instead of returning the plaint,-
(a) transfer the suit to the proper court;
(b) fix a date for the purpose mentioned in clause (b) of that sub-rule; and
(c) give to the plaintiff and the defendant such notice as is referred to in clause (c) of that sub-rule and where such notice is given,-
(i) it shall not be necessary for the court to which the suit is transferred to serve the defendant with a summons for appearance in the suit, unless that court, for reasons to be recorded, otherwise directs; and
(ii) the said notice shall be deemed to be a summons for appearance of the defendant in that court on the date so fixed.
7.23. Order 7, rule 11(c), provides that the plaint shall be rejected 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. Some controversy seems1 to exist on the question whether granting of time under this rule is mandatory. One view is, that the matter falls outside section 149, and is entirely governed by Order 7, rule 11, which is a special provision; and, therefore, the party is entitled to demand some time for making good the deficiency. Another view is, that the grant of time is discretionary, on the ground that the authority to grant time is in section 149, and not in Order 7, rule 11, which is a disabling provision.
1. (a) Radha Kanta v. Debendra Narayan, ILR 49 Cal 890: AIR 1922 Cal 506 (508) (Mookerjee and Cuming JJ.).
(b) Subba Reddy v. Venkatanarasimha Reddy, AIR 1937 Mad 268.
(c) Venkanan v. Achatromana, AIR 1938 Mad 542 (543), (Venkatasubba Rao J.).
(d) Achut Ramchandra v. Nagappa, AIR 1914 Born 249 (250) (Bathelor and Shah JJ.) (Traces history of the rule).
(e) Baijnath v. Umeshwar, AIR 1937 Pat 550 (FB).
(f) Shiv Charan v. Behari Lal, AIR 1941 Oudh 30.
(g) Ram Kishan v. Nutha, AIR 1959 Born 86 (Mudholkar J. Reviews case law).
7.24. The Madras High Court has made an express amendment to this rule which, ih substance, provides that the grant of time is a matter of discretion. The question whether the Madras amendment should be adopted was considered in the earlier Report1, but it was felt unnecessary to insert any such provision.
1. 27th Report, note on Order 7, rule 11.
Recommendation
7.25. We are of the view that the Madras amendment should not be adopted, as it would be too harsh. At the same time, we are of the view that once time is given, it should not be extended, and section 148 should not apply to such cases.
Recommendation
7.26. Accordingly, we recommend that present Order 7, rule 11, should be re-numbered as sub-rule (1), and sub-rule (2) should be inserted in that rule as follows:-
"(2) Where a plaint is liable to be rejected under clause (b)1 or clause (c) of sub-rule (1), the court shall grant time to the plaintiff to correct the valuation of or to supply the requisite stamp paper, as the case may be; but, notwithstanding anything contained in section 148, time so granted shell not be extended".
1. Order 7, rule 11(b) stands on the same footing as Order 7, rule 11(c).