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2015 DIGILAW 45 (GAU)

Nandita Acharjee v. State of Assam

2015-01-20

RUMI KUMARI PHUKAN

body2015
JUDGMENT AND ORDER Rumi Kumari Phukan, J. - The present appeal is directed against the order dated 14.10.2004 passed by the learned Civil Judge, (Sr. Divn), Nagaon in Money Suit No. 26/2004 whereby the learned court has rejected the plaints so filed by the appellant. 2. The appellant plaintiff filed a suit for damage and compensation against the respondents in the tune of Rs.50 Crores raising certain allegations against the respondents who have indulged into various antisocial activities, illegal extortion by use of manpower and muscle power against the appellant in series of acts as has been narrated in the plaint. In news item published in the Assam Tribune on 4.2.2003 has also been challenged. The appellant also filed a petition under Section 80(2) of the CPC seeking leave of the court to file the suit. The court however, without passing any order for leave, registered the case and issued summon to the respondents. In response to the summon issued, the defendant Nos.1 to 5 and 7 and 8 filed written statement and other defendants took time for filing written statement. Defendant No. 6 however, did not contest the case. During the proceeding, defendant No. 7 filed various petitions before the court under Order 7, Rule 11(d) and Rule 11 (e) of CPC for rejection of the plaint to which the appellant filed written objection. 3. The bone of contention of the defendants/respondents raised in those petitions is that the suit instituted by the plaintiff without service of notice under Section 80 CPC is bad in law. Further contention was that the plaint is not accompanied by verification and affidavit as required under Section 26 with Order 6, Rule 15 CPC. It is also alleged that the case was filed after one year publishing of news item in the Assam Tribune, so, the case is barred by Section 75 of the Limitation Act. Non-compliance of provisions of Order 4, Rule 1 for not presenting plaint in duplicate is also assailed and on the above mentioned grounds, it was prayed to reject the plaint. 4. The plaintiff/appellant resisted the objection that the procedural defects for non submitting copy of plaint and verification and affidavit etc. is curable irregularities which can be allowed by the court. As regards the compliance of Section 80(2) CPC, it has been contended that the defendant No. 7 is not a Govt. 4. The plaintiff/appellant resisted the objection that the procedural defects for non submitting copy of plaint and verification and affidavit etc. is curable irregularities which can be allowed by the court. As regards the compliance of Section 80(2) CPC, it has been contended that the defendant No. 7 is not a Govt. officer, so, he has no locus standi to raise the contention. As regards the provisions of limitation as has been raised by the defendant, it is answered by the appellant that question of limitation in the suit is governed by Article 113 of the Limitation Act whereby limitation period is three years and it is not covered by the Section 75 of the Limitation act as has been agitated by the defendant. 5. After considering the submissions of both sides, learned court below has accepted the contention raised by the defendant and rejected the plaint which has occasioned to file the present appeal. 6. I have heard Mr. SK Ghosh, learned counsel appearing for the appellant and Mr. G Sarma, learned Govt. Advocate, Assam appearing for respondent Nos. 1 to 4. 7. According to the learned counsel for the respondents, there is no illegality in the impugned order dated 14.10.2004 passed by the court below and there is nothing to interfere with the impugned order by this Court. 8. I have considered the rival submissions of both the parties and perused the lower court records and the impugned order. It is to be noted that respondent No. 7 is the Editor of Assam Tribune and obviously he is not a Govt. Officer and as such he has no locus standi to challenge the violation of Section 80(2) of the CPC. However, as the matter has been discussed in the impugned order, the learned counsel for the appellant has relied upon the case law reported in AIR 2002 Calcutta 11 and AIR 2004 Delhi 225 wherein Hon'ble Supreme Court held as follows; "Once the court seized of an application under Section 80(2) of the CPC, it ought to have dispose of the application first either by granting leave or refusing it. But where the suit has already been registered by the court and an ex-parte interim order also passed, it could be presumed that the court has impliedly granted leave to institute the suit or that notice stood waived in the facts and circumstances of the case and therefore, the suit cannot be dismissed for want of notice. No separate application and expressed order are essential requisites, such leave can be presumed. The leave need not be granted by formal order and it could be gathered from what the court does." 9. In the present case, the appellant/plaintiff has filed the petition under Section 80(2) CPC as has been mentioned in the impugned order but the learned court below passed no any sort of order on the same and instead registered the case and proceeded accordingly. So in the light of the above legal pronouncement, it can be held that the court has waived the service of notice. 10. Another ground of appeal that the point of limitation being a mixed question of law and fact, the court below cannot reject the plaint at the threshold of the case under Order 7, Rule 11 CPC and as such it is liable to be set aside. 11. Reliance has been placed upon the case law reported in 2006 (5) SCC 658 , Balasaria Construction (Pvt. Ltd.) v. Hanuman Seva Trust wherein it has been held by Hon'ble Supreme Court as follows; "Plaint cannot be rejected under Order 7, Rule 11 (d) and suit cannot be dismissed as barred by limitation without proper pleadings, framing of issues of limitation and taking evidence." 12. Question of limitation is a mixed question of law and fact and ex-facie reading of the plaint, the suit cannot be held to be barred by limitation. It shall be open to the defendant to raise any plea available to it under the law including the law of limitation, maintainability of the suit etc. 13. In the present case, whether the limitation will run as per Article 75 or 113 of the Limitation Act is to be adjudged on the appreciation of evidence. Similarly, while deciding to accept or reject the plaint what can be seen is only the averments made in the plaint. The defence cannot be looked into and it is only the plaint that has to be looked in. Similarly, while deciding to accept or reject the plaint what can be seen is only the averments made in the plaint. The defence cannot be looked into and it is only the plaint that has to be looked in. The plaint discloses cause of action, the averments do not disclose that the suit is barred by any law. Whether the averment made in the plaint are true or not is not a issue in examining the application filed under Order 7, Rule 11 CPC. 14. For non compliance of provision of Order 6, Rule 15 and Section 26 CPC, the plaint is not liable to be rejected and such defect can be cured at any stage by taking fresh verification and affidavit and the suit should not fail for such defects without giving an opportunity to the parties to rectify the defect. Any rigidity of law prevent the free flow of justice and law is respected and obeyed not because of its rigour and technicality but for its vitality so that people can resort to the court of law for advancing justice. A litigation should adhere to by allowing both the parties for adducing proper materials and evidence so that nothing can be left over or suppressed. 15. In view of all above, I am of the considered view that only on the basis of submission of one of the defendants, the court should not reject the plaint at the threshold of the litigation. Accordingly, the impugned order is hereby set aside and the matter is remanded back to the court of learned Civil Judge, (Sr. Divn.), Nagaon, with a direction to proceed with the case as per law and prescribed procedure as has been held in the decisions above mentioned. Further, the case should be disposed of as expeditiously as possible being the old pendency of the matter. 16. Appeal is accordingly allowed. 17. Return the lower court record.