Upon rejection of the suit, if the defendant is present before the issuing of summons is allowed to be heard
Table of Content:
- Background and submissions
- Issues raised
- Statutory provisions involved
- Judgment analysis
- Conclusion
- Case Laws:
- Bright Enterprises Pvt. Ltd. v. MJ Bizcraft LLP
- Avneet Singh Bedi v. Inder Pal Singh
Tajunissa & Anr. Vs Vishal Mishra & ors. [L.A. 7168/ 2021]
Background of the case
In the present case Learned Counsel Mr. Ravi Gupta while representing Defendant No. 3 argued that the present suit was liable to be rejected on the ground of Order 7 Rule 11 (d) of the CPC and hence there is no requirement for the issue of summons. While contradicting the submission of Mr. Gupta, the learned counsel Mr. Anupam Lal Das for the Plaintiff contended that:
- As per the rules of CPC defendant doesn’t have a right to be heard either before issuance of summons or filing of caveat.
- Summons necessarily be issued in every case when the suit is duly instituted. For his submission, Mr. Das had relied upon the ruling of Bright Enterprises Pvt. Ltd. v. MJ Bizcraft LLP for this purpose.
- Mr. Das further relied upon para 9, 11, and 12 of the judgment passed in the case of Avneet Singh Bedi v. Inder Pal Singh.
Para 9 “A perusal of the facts here does not show that the plaint fails to disclose any cause of action. It does not also show that it is barred by any provision of law. It may be a weak case and may not ultimately result in a decree in favour of the plaintiffs. At the stage of issuing summons, this court would not have to go into the merits of the case or the merits of the submissions being made.”
Para 11 “As noted above, these are disputed questions of fact which cannot be answered at the stage when the consideration is as to whether the plaint has to be registered as a suit and summons have to be issued to the defendants. As to whether the plaintiff has approbated or reprobated and if so, its effect is an exercise which can only be carried out after due consideration when the written statement/defence of the defendants are on record.”
Para 12 “In my opinion, at this stage, it cannot be said that the plaint does not disclose a cause of action or is barred by law. Summons have to be issued to the defendants.”
Issues Raised
- Whether it is necessary to issue summons in every which is ‘duly instituted’?
- Whether at this stage court can hear the contention of the counsel of Defendant No. 3?
Statutory Provisions
- Order 7 Rule 11 (d) of the Code of Civil procedure
“The plaint shall be rejected: – where the suit appears from the statement in the plaint to be barred by any law.”
- Order 5 Rule 1 of the Code of Civil Procedure
“Summons.—
(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim:
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of the summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—
(a) In person, or
(b) By a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) By a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.”
- Section 26 of the Code of Civil Procedure
“Institution of suits. —
- Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. In every plaint, facts shall be proved by affidavit
Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of rule 15A.”
- Section 27 of the Code of Civil Procedure
“Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed 2 [on such day not beyond thirty days from date of the institution of the suit.”
- Section 148 A of the Code of Civil Procedure
“Right to lodge a caveat:
- Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court , any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
- Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made, under sub-section (1).
- Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.
- Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
- Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.”
The Decision of the court
In respect of the first issue, the court stated that this question is duly answered in para 18 to 20 of the case Bright Enterprises Pvt. Ltd. v. MJ Bizcraft LLP, and the learned counsel of the plaintiff himself relying on this case. The said paragraphs clearly state that the summons is required to be issued in every case which is duly instituted except the situation where the suit is returned under the purview of order 7 Rule 10 or it has been rejected under order 7 rule 11 of the CPC.
The court rejected the submission of the plaintiff in respect of issuing of summons in every case which is duly instituted by stating that the court has the power to examine a case even at the initial stage where the suit is barred by order 7 rule 10 or 11.
In respect of the second issue, it was held that even if the court at the initial stage examine the suit in the case whether such suit is liable to be rejected under Order 7 rule 11 the absence or the presence of the defendant does not matter as he is not to be heard at that time. Though it was specified that it is open to the defendant that he can raise an objection regarding the maintainability of the suit after the summons have been issued to him but the court has summed up that a suit may be rejected on the ground of Order 7 Rule 11 before the issuance of the summons but if the defendant is present before the issuance of summon then there is no harm to hear the defendant.
Conclusion
The Delhi High Court held that the contention of Mr. Das Learned counsel for the plaintiff is not based on any provision of the Code of Civil Procedure or any other statute. Therefore, the court decided to hear the parties including Mr. Ravi Gupta counsel for the defendant.