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Report No. 144

6.4.7. Recommendation.-

There appears to be need for clarifying the position, because the situation in question is of a recurring nature. The object of the provision giving power to reject the plaint to ensure that an unnecessary trial of the various points raised in the pleadings should not be held where, even after accepting the allegation to be correct, there is no cause of action in favour of the plaintiff. This being the objective, it is desirable that the narrow view of the scope of the rule should be adopted rather than the wider view. If there is a serious question to be decided, the proper course would be to let the suit proceed and then determine the matter on preliminary issues. Accordingly, it is suggested that Order 7, rule 11(a), should be replaced by the following:

"(a) where, the averments made in the plaint, even assuming them to be true, do not disclose a cause of action."

6.5. Order 8, rule 6A and Limits as to Nature of Counter-Claim

6.5.1. In the Civil Procedure Code, provisions relating to counter-claims have been inserted in 1976. A controversy has arisen as to the kind of counter-claims and the class of suits to which these provisions apply. Order 8, rule 6A(1), reads as under:-

"6A(1). A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court."

6.5.2. Order 8, rule 6A(2) provides, inter alia, that such counter-claim shall have the same effect as a plaint. Order 8, rule 6A(4) provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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