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Report No. 163

Q.14. Order 7, rule 11 (Rejection of plaint): Clause 17(11) of the Bill.

Order 7, rule 11 of the Code requires the court to reject the plaint in four situations.

The Bill seeks to add, to this enumeration the following additional situations: "

(e) where it (i.e. the plaint) is not filed in duplicate;

(f) where the plaintiff fails to comply with sub-rule (2) of rule 6 (The reference seems to be to Order 5, rule 9, as proposed to be revised - See Q.13 above).

(g) where the plaintiff fails to comply with sub-rule (3) of rule 9A [This seems to refer to Order 3, rule 9A(2), relating to court-controlled service of process].

In order to help the respondents in answering this Questionnaire, it may be convenient to elaborate the impact of the proposed amendments in some detail, as under:

Proposed clause (e) - The Bill, by clause 14(i), proposes that the plaint shall be filed in duplicate. [See Q.7, above]. Presumably, as a connected amendment, clause 17(ii), by inserting Order 7, rule 11(e), seeks to provide that for failure to file a duplicate, the plaint shall be rejected. [The proposal does not envisage any time to be given to the plaintiff for the purpose of rectification].

It seems to be preferable that some time should be given to the plaintiff to rectify the omission.

Proposed clause (f) - Order 7, rule 5 as proposed to be amended [See Q.9, above], requires the plaintiff to send the summons to the defendant (alongwith a copy of the plaint) for carrying out the mode of service through the plaintiff (as now contemplated). This must be done within 2 days. Order 7, rule 11(f) proposes that if this is not dome, the plaint shall be rejected.

Now, it is to be noted that the above stage will really arrive, only after the plaint is admitted under (proposed), Order 7, rule 9(1). Post-admission "rejection" may not be quite appropriate. Apart from that linguistic point, there is a matter of substance to be considered. Should not the plaintiff be allowed some time to rectify the failure to send the copies?

Ordinarily, the plaintiff will not deliberately delay the service; but the pressures of work or other circumstances may come in the way in special situations.

Proposed clause (q) - Clause (g), as proposed to be inserted in Order 7, rule 11, in effect means that if, as contemplated by proposed Order 5, rule 9A(2), the plaintiff does not deliver to the court office the copies and fees etc. for court-controlled service, then the plaint shall be rejected. Here again, no opportunity is to be given to the plaintiff to rectify the failure. It is to be considered whether a straightway rejection of the plaint (compulsorily) is called for, in such cases. It is true that the rejection (i) is appealable and (ii) does not bar a fresh suit (there being no decision on the merits). But, in the long run, an appeal or a fresh suit will mean fresh burden on the court (apart from the trouble and expense which have to be incurred by the plaintiff).

Comments on Clause 17(h) of the Bill are invited in the light of the above points.

[See also Q.7, supra].

The Code of Civil Procedure (Amendment) Bill, 1997 Back

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