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1981 DIGILAW 130 (GAU)

Kalipada Bhowmik v. Biswanath Prasad Kundu & Others.

1981-11-09

B.L.HANSARIA

body1981
Hansaria, J.- Whether Order 7 Rule 11 of the Code of Civil Procedure contains exhaustive provisions under which a plaint can be rejected?-is one of the questions required to be answered in this appeal. Another question is whether form of the order passed by a Court is to prevail or the substance of the same? 2. These questions have arisen on these short facts. The plaintiff-appellant filed a suit for declaration that the decrees obtained by the defendants-respondents earlier were collusive and fraudulent. After appearance the defendants No. 1 and 2 prayed for inspection of the documents referred to in the pla­int, This petition was filed on 21.11.75 and the Court fixed 1.12.75 for production of the documents. On that day further time was prayed by the plaintiff which was allowed by awaring an adjournment cost of Rs. 10/- fixing 15.12.75 for the purpose. On prayer for time again being made on that day, the same was rejected and the trial Court ordered for rejection of the plaint. On an appeal being preferred, it has been held by the learned District Judge, Nowgong that the appeal was not maintainable in as much as the purported rejection of the plaint being not authorised by Order 7 Rule 11, the same could not be regarded as a "decree" within the meaning of section 2(2) of the Code. In coming to this view, the learned District Judge placed reliance on Amba Shankar vs. Seoti, AIR 1937 All. 280, and Munusamy vs. Chengaharaya, AIR 1943 Madras 645, both of which are renderings by single Judges on the matters coming before them in revision in Amba Shankar it was held that before an order can amount to rejection as contemplated by section 2(2), it must be "reje­ction" authorised by some provisions of the Code of Civil Procedure. In that case, the learned District Judge had order for rejection of the memorandum of appeal on a ground not visualised by Order 7 Rule 11. On a revision being preferred agiinst that order, the same was set aside. In Munusamy, the rejection was ordered because the plaintiff had not filed a copy of the partition decree on which reliance was placed in the plaint. It was observed by the High Court that this cannot be a reason to reject that plaint whose grounds are set out in Order 7 Rule 11. In Munusamy, the rejection was ordered because the plaintiff had not filed a copy of the partition decree on which reliance was placed in the plaint. It was observed by the High Court that this cannot be a reason to reject that plaint whose grounds are set out in Order 7 Rule 11. It was further observed that the punishment of non-production of such documents is the one set out in Order 7 Rule 18, viz. that the documents shall not, without the leave of the court, be received in evidence on behalf of the plaintiff at the hearing of the suit. 3. As against these decisions, Shri Sarma has referred to a Division Bench decision of the then Hyderabad High Court in Radakishen vs. Wait Mohammed, AIR 1956 Hyd. 133, which has held that the instances given in Order 7 Rule 11 cannot be regarded as exhaustive of the cases in which a court can reject a plaint as limiting the inherent powers of the Court in respect thereof. One of the learned Judge took the view that for rejection of the plaint under Order 7 Rule 11 on any grounds other than those specified the defect must be such as would affect the jurisdiction. 4. I have duly considered the rival contentions and views. It appears to me that in the cases mentioned in Rule 11 of Order 7, a plaint has to be rejected; there is no option left with the Court. I would read this mandate from the opening words of Rule 11; "The plaint shall be rejected." (underscor­ing by me). There may however be some other contingencies under which the Court may feel called upon to reject a plaint. I would respectfully agree with what was stated by Bilgrami, J. in Radakishen (supra) that for rejection of the plaint under this Rule on any of the grounds other than those specified, the defect must be such as would affect the jurisdiction. Such a rejection would be a 'decree' within the meaning of section 2(2) of the Code, and so appealable. For the case at hand, it is rot necessary to pursue this aspect of the matter further inas­much as the appeal was maintainable, according to me, even otherwise, as the impugned order has to be regarded to be one passed under Order 11 Rule 21, to which my attention was fairly drawn by Shri Yadav. For the case at hand, it is rot necessary to pursue this aspect of the matter further inas­much as the appeal was maintainable, according to me, even otherwise, as the impugned order has to be regarded to be one passed under Order 11 Rule 21, to which my attention was fairly drawn by Shri Yadav. That Rule has its application because the present cannot be said to be a case covered by Order 7 Rule 18, of which mention has been made in Munusamy (supra). From the materials on record it does not appear (hat the docu­ments whose inspection was sought for were those on which the plaintiff had sued or had relied as evidence in support of his claim. Had it been so, Order 7 Rule 18 would have been operative. As against this, Order 11 Rule 21 visualises dismissal of suit where a plaintiff fails to comply with an order of inspec­tion of documents. Any order passed under this provision has been made appealable under, Order 43 Rule 1 (f). In the present case the order of rejection had to be passed on the plaintiff's failure to produce documents whose inspection was prayed by the defendants. As such, order 11 Rule 21 gets squarely attracted, and any order of dismissal passed under it is appealable as indicated. Though the learned trial Court has not said about the dismissal of the suit, but has ordered for rejection of the plaint, it would not advance the cause of justice to go by the form of the order rather than the substance of the same. There being a specific provision in the Code providing for the effect of non-compliance with an order of inspection of documents, recourse to some other general provision does not seem permissible. 5. I therefore hold that the impugned order has to be treated to be one under Order 11 Rule 21, which is appealable. As such, the appeal of the plaintiff was maintainable. The learned District Judge committed an error of law in dismissing the appeal on the ground of non-maintainability. The order is there­fore set aside and the matter is remanded back to the learned District Judge for disposal on merits and in accordance with law.