CRITICAL ANALYSIS OF PLAINTS IN A CIVIL SUIT Chapter 1 Chapter 1
Introduction to Plaint
1.1 Introduction
In plaint, plaintiff should allege facts about his cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be present in plaint. It is a first duty of court, before which a suit is instituted to properly examine the plaint, for the purpose of determining, whether it should be returned, or rejected and in order to determine, the question of rejection it is the responsibility the court to take consideration other materials too, Order VII, Rule 11 of CPC narrate cases where plaint should be rejected. According to section 26 of the Code of the Civil Procedure every suit shall be instituted by the presentation of a plaint.1 Once the plaint is ready, it is to be filed in the court which has both territorial and pecuniary jurisdiction. According to section sec tion 15 15 of the CPC a suit trial by a civil court must be instituted in the court of the lowest grade competent to try it. Once a plaint is taken to the court, the court officer, the date of filing shall also be stamped on the plaint as soon as it is filed. Once this is done a civil suit is said to have been started. The machinery of a court is set in motion by the presentation of a plaint, which is the first stage in a civil suit. 2 A civil suit can be filed by presentation of a Plaint before the appropriate court Plaint contains name of the court, parties‟ names and addresses, cause(s) of action and relief sought etc. (Order VII, Rule 1, Code of Civil Procedure,1908). Procedure ,1908). A litigant must read and verify that the plaint clearly shows the cause of action of the suit and must be cautious that the suit is not barred by limitation, otherwise, a plaint may ma y be rejected under order VII, rule XI of the said Code. Appropriate legal counsel may be sought to check the abovementioned matters. Requisite Court fees should be attached with the Plaint. Court fees can be either fixed or based on ad-valorem basis. Once a plaint is ready, it will be filed with the concerned court having jurisdiction. A civil suit has to be filed in the court of lowest grade competent to try it. Learned advocate should prepare a bundle for court which includes plaint, vokalotnama (power given to Lawyer by client), list of documents upon which the claimant(s) rely on, process fee, notice of summon, copies of the plaint as required depending on the number of defendants. Thereafter, the plaint including other necessary documents should be submitted 1 2
The Code of the Civil Procedure , 1908. (Act No V of 1908). Md. Abdul Halim, The Legal System of Bangladesh, 1st ed., (Dhaka: CCB Foundation, 2004). p. 164.
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before the concerned court officer, who shall examine, inter alia, territorial and pecuniary jurisdiction and requisite court fees paid thereof. After such examination he will put a case number of the suit and will enter the suit into a register which is called the register of the suits. The date of filing shall also be stamped on the plaint as soon as it is filed. When all the above procedures are completed, a civil suit starts its journey.
1.2 Plaint under the statutory law of Bangladesh of the Code of Civil Procedur Proceduree,1908
Section 26 26 provides provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order IV, Rule 1 lays down the procedure for institution of suit; but does not speak of any „other manner‟ for the purpose. The amendment makes it clear that unless the plaint is filed in duplicate it will be deemed to be incomplete. Sub-rule (3) has been inserted in order to curtail unnecessary adjournments for due compliance of the provisions of sub-rules (1) (1) and (2) (2) after the filing of the plaint. Rules 1 to 8 of Order VII relate to particulars in a plaint. Rule 9 lays down procedure on plaint being admitted. Whereas Rule 10 10 provides provides for return of plaint, Rules 11 11 to to 13 13 deal deal with rejection of plaint. Rules 14 14 to to 18 18 contain contain provisions relating to production of documents. 3
Chapter 2 Chapter 2
Particulars of the Plaint
2.1 Defination of Plaint
The expression „plaint‟ has not been defined in the code. . A plaint or otherwise known in Bengali as an “Arji” is a document where the facts and grounds of claim are stated clearly and concisely.
However, it can be said to be be a statement of claim, a document, by
presentation of which the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff. It is a pleading of the plaintif f.4 Black's Law Dictionary provides that “A private memorial tendered in open court to the judge, where the party injured sets forth his cause of action. 5 A proceeding in inferior courts by which an action is commenced without original writ. This mode of proceeding is commonly adopted in cases of replevin. In the civil law. particularly law. particularly one for setting aside a testament alleged to be invalid. This word is the English equivalent of the Latin “que - rela,” 3
The Code of Civil Procedure, 1908, Sec. 26, Order IV, Order VII
4
C. K. Takwani, Civil Procedure, 5th ed., (Lucknow: Eastern Book Company, 2006). P. 157. Black's Law Dictionary
5
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6
Radheshyam Agrawal vs Hariom Trading Co. And Ors. on on 12 August, 1991 1991 : Indeed, " Plaint" has not been statutorily sta tutorily defined. But it should contain necessary and relevant facts constituting the cause of action. The counterclaim need not necessarily be confined to the claim made against the plaintiff, and if for its effective adjudication besides the plaintiff the plaintiff other interested interes ted persons should be made parties, they the y should be impleaded, if the court is satisfied that without them the adjudication will be incomplete. Order 8, Rule 6-A, C.P.C. does not say as to who shall be parties to the counter-claim. The provisions as to joinder of parties under Order 1, Rule 10, of C.P.C. would also apply to counter-claim, no doubt, subject to the condition that persons impleaded are necessary and proper parties for an effective adjudication of the questions involved. The submission that Order 8, Rule 6-A does not enable the participation of persons who are not already parties to the suit is difficult to accept.Finally can say that" Plaint is written statement of plaintiff’s claim. Through plaint, plaintiff describes his cause of action and other necessary particulars to seek remedy from court for redressed of his grievances.
2.2 Particulars of Plaint
a. Every plaint should contain the following particular: b. The name of the court in which the suit is brought; c. The name, description and place of residence of the plaintiff and defendant; d. Where the plaintiff or defendant is a minor or a person of un sound mind, a statement to that effect; e. The facts constituting the cause of action and when i t arose; f. The facts showing that the court has jurisdiction; g. A statement of the value of the subject- matter of the suit for the purpose of jurisdiction and court-fees; h. The relief claimed by the plaintiff, simply or in the alternative; i.
Where the plaintiff files a suit in a representative capacity, the facts showing showing that the plaintiff has an actual existing interest in the subject matter and that he has taken steps that may be necessary to enable him to file fil e such a suit;
j.
Where the suit is for recovery of money, the precise amount claimed;
k. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; 6
Radheshyam Agrawal vs Hariom Trading Co. And Ors . on 12 August, 1991
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l.
Where the suit is for accounts accounts or menses or for movables movables in the possession of the defendant or for debts which cannot be determined, the approximate amount or value thereof;
m. Where the subject-matter of the suit is immovable property a description of the property sufficient to identify it, e.g. boundaries, boundaries, survey numbers, etc; n. Where the suit is time-barred, the ground upon which the exemption from the law of o. limitation is claimed;7
2.3 Particulars of claim to be annexed to plaint
Where the plaintiff seeks to recover a debt or a liquidated sum of money, there shall be annexed to the plaint particulars of the plaintiff‟s the plaintiff‟s claim.
2.4 Plaint to be verified and before whom
All plaints shall be verified, within the local jurisdiction,8 before one of the officers of the Court appointed in that behalf and elsewhere in Bangladesh Bangladesh before the officer indicated by the Code of Civil Procedure, section 139. The verification shall be in Form No. 3. 3. Bharamu Bharamu Subrao Patil v. Narsingrao Gurunath Patil,
2.5 Plaint to be lodged before presentation
A plaint in which leave of the Court is to be applied for shall, except in cases of special urgency, be lodged for examination with the officer attending on the Judge in Chambers before 4.15 4.15 p.m. p.m. on the day previous to its being presented to the Judge and the plaintiff or his Advocate on record shall attend before attend before the Judge at the time of presentation. All other plaints shall be lodged with such officer as the Prothonotary and Senior Master may 9
direct. Bharamu Bharamu Subrao Patil v. Narsingrao Gurunath Patil, AIR 2001 .The Office time for lodgment of all Court proceedings shall be from 11-00 00 a.m. a.m. to 5 to 5 -30 30 p.m., p.m., except lunch time, from Monday to Friday (except holidays) and from 11-00 a.m. to 4-15 p.m., except lunch time, on office working Saturdays.]
7
Ibid. Subrao Patil v. Narsingrao Gurunath Patil, 9 Bharamu Subrao Patil v. Narsingrao Gurunath Patil, AIR 2001 8
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2.6 Plaint to be properly stamped
The plaint and documents therewith, when so lodged, shall be properly stamped with uncancelled stamps ready for filling.
2.7 Endorsem Endorsement ent on admission
When a plaint is admitted in words “Admitted this day” shall be endorsed thereon and signed by the Prothonotary and Senior Master or by one of his assistants, assistants, the words “written statement” being added when such statement is requ required. ired. Offici Official al title title only only of Advoca Advocate te General to appear in suit by or against him.
2.8 Relators
When the Advocate General is a party to a suit in his official capacity, he shall be named and described in the pleadings by his official title only. Before the name of any person shall be used in any suit as relator, such person shall sign a written authority to the Advocate on record for that purpose and such authority shall be filed in the office of the Prothonotary and Senior Master.
Chapter 3 Chapter 3 Time and Presentation of the Plaint
3.1 Presentation of the Plaint
Commencement of the Suit: Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of Order 4 goes as: i.
Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.10
ii.
Every plaint shall comply with the rules contained in Order VI and VII, so far as they are applicable.
iii.
The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2). Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
10
The Code of Civil Procedure , 1908, Order VII, Rule 1.
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Generally, the presentation of a plaint must be on a working day and during the office hours. However, there is no rule that such presentation must be made either at a particular place or at a particular time.11 A judge, therefore, may accept a plaint at his residence or at any other place even after office hours, though h is not bound to accept it it.. J. Venkatramana Reddy vs Kanakagari Bhakthavatsalaiah , 2002 .But if not too convenient, the judge must accept the plaint, if it is the last day of limitation. limit ation. Thereafter, the particulars of a suit will be entered by by the court in a book kept for the said purpose, called the Register of Civil Suits. After the presentation, the plant will be scrutinized by the Stamp Reporter.12 If there are defects, the plaintiff or his advocate will remove them. Thereafter the suit will be numbered. numbered. M/S M/S Anita International vs Tungabadra Sugar Works Maz.Sangh ... on on 4 July, 2016. 3.2 Parties 3.2 Parties to suit
13
There must be two parties in every suit, namely, the plaintiff and the defendant. There may, however, be more than one plaintiff or more than one defendant. But there must at least one plaintiff and one defendant in every suit. All particulars, such as nam name, e, father‟s name, age, place of residence, etc, which are necessary to identify the parties, must be stated in the plaint.. Smt. Kalawati Devi vs Chandra Prakash And Ors. on 2 September, 1957 plaint
3.3 Cause 3.3 Cause of action
14
Every suit presupposes the existence of a cause of action against defendant because if there is no cause of action the plant will have to be rejected. Even though the expression “cause of action‟‟ has not been defined in the Code, it may be described as “a bundle “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed‟‟ or “which gives the plaintiff right to relief against the defendant” Thus “cause of action” means every facts, which it is necessary to establish to support a right or obtain a judgment. To put it differently, cause of actions gives occasion for and forms the foundation of the suit. The classic definition of the said expression is found in the case of Cooke v. Gill , wherein Lord Brett observed: “Cause of action action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right right to the judgment of the court‟‟. Cause of action has nothing to do with the defense which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to 11
J. Venkatramana Reddy vs Kanakagari Bhakthavatsalaiah ... on 2 September, 2002 M/S Anita International vs Tungabadra Sugar Works Maz.Sangh ... on 4 July, 2016 13 The Code of Civil Procedure, 1908, Order VII, 14 Ibid. 12
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the grounds set forth in the plaint as the cause of action. It is also necessary for the plaintiff to state specifically when such cause of action arose. arose. Central Government Employees vs Consolidated Civil ... on 24 January, 2012 .This will enable the defendant as well as the court to ascertain from the plaint whether in fact and in law the cause of action as alleged by the plaintiff in the plain did arise or not. The Supreme Court stated, the object underlying Order VII, Rule 1, which require that the plaint shall contain the th e particulars about the facts constituting the cause of action acti on and when it arose, is to enable the court to find out whether the plaint discloses the causes of action because the plaint is liable to be rejected under Order VII, Rule 11, CPC if it does not disclose the cause of action. T. Muralidhar vs Pvr Murthy on 7 November, 2014. 2014 . The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help the court in ascertaining whether the suit is not barred by limitation. 15 Any error on the part of the plaintiff in indicating the date dat e on which the cause of action arose would be of li ttle consequence if the cause of action had arisen on the date on which the suit was filed and the suit was within limitation from the said date. The error in mentioning the date on which the cause of action had arisen in the plaint in such a case would not disentitle the plaintiff from seeking relief from the court in the suit. 16
3.4 3. 4 Valuation
The plaintiff must state in the plaint the valuation of the subject- matter of the suit for the purposes of pecuniary jurisdiction of the court and court fees, sometimes, the valuation of the subject-matter for both the purposes may be the same, as, for example, in a suit for recovery of money. But sometimes, to valuations may differ, as, for example, in a suit for declaration or in a suit for injunction or for possession of immovable property. Perumal vs Boyot Selvacarassou, Power Agent ... on 3 April, 2002 2002.. In such a case, the plaintiff should distinctly state the valuation of the suit for the purpose jurisdiction of the court and for the purpose of court fees.17
15
T. Muralidhar vs Pvr Murthy on on 7 November, 2014. C. K. Takwani, ibid., pp. 157-160. 17 Ibid. 16
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3.5 Limitation: 3.5 Limitation: Rule 6
Rule 6 provides that where the suit is barred by limitation, is necessary for the plaintiff to show the ground of exemption in the plaint. But the proviso added by the amendment act of 1976 empowers the court to permit the plaintiff to rely on a new ground for exemption if it is not inconsistent with the grounds mentioned in the plaint. 18 Smt. Baldev Kaur vs ) Municipal Corporation Of Delhi on 25 25 November, November, 2016
3.6 Jurisdiction 3.6 Jurisdiction of the court
The plaint must state all the facts showing how the court has pecuniary and territorial jurisdiction over the subject-matter of the suit. Asif Ahmedally Porbunderwalla vs Mrs. Daulat Akbarali ... on 22 August, 2013. 2013 .When the jurisdiction of a court to entertain the suit is disputed by the defendant, the court may frame the issue to that effect and decide the same before deciding other issues. 19
3.7 Relief: 3.7 Relief: Rules 7 - 8
Every plaint must state specifically the relief claimed by the plaintiff either simply or in the alternative. Where the relief is founded on separate and distinct grounds, they should be so stated. Where the plaintiff is entitled to more than one relief in respect of the same cause of action. It is open to him to claim all or any of such r elief‟s. r elief‟s. But if he omits, accepts with the leave of the court, to sue for any particular relief, he will not afterwards be allowed to sue for the relief so omitted. Smt.Sarverunnisa Begum vs Syed Rafeeq on 9 March, 2015 The court must have regard for all the relief and look at the substance of the matter and not at its form. As, for example, prayer for costs need not be added in the plaint since as a general rule costs follow the event, and the court bound to decide the point. 20 Similarly, in a suit for possession and manse profits, the court can grant future mesne profits even if they are not specifically asked for. The plaintiff should state specifically the relief which he claims either simply or in the alternative. Where a question arises as to whether the plaintiff has asked for a particular relief in his plaint, the plaint must be read as a whole and the substance of the matter and not the form thereof should be considered.
18
The Code of Civil Procedure, 1908 , Order VII, Rule 6. C. K. Takwani , ibid., p. 159. 20 Smt.Sarverunnisa Begum vs Syed Rafeeq on 9 March, 2015 19
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The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is, did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know what the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. The suit cannot be dismissed merely on the ground that the plaintiff has claimed a larger relief than he is entitled to. But the lesser relief to which the plaintiff is entitled will be granted in his favor. But the court cannot grant a larger relief to the plaintiff than that claimed by him even if he is entitled to it unless he gets his plaint amended ame nded with the leave of the court.
21
3.8 Events happening after institution of suit
The basic rule is that the rights of the parties should be determined on the basis of the date of filing of the suit. Thus, where the plaintiff has no cause of action on the date of the filing of the suit, he will not ordinarily be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Similarly, no relief will be refused to the plaintiff by reason of any subsequent even if at the date of the institution of the suit, he has a substantive right. This, however, does not mean that no events happening after the institution of a suit can be taken into account at all. In appropriate cases, it is not only the right but the duty of the court to consider the changed circumstances. Where it is shown that the original relief claimed by the plaintiff has, by reason of subsequent change in the circumstances, become useless or inappropriate or where it is necessary to take notice of changed circumstances to shorten litigation, a new relief may serve the purpose better or that a relief is required to be reshaped or molded in the light of change in facts or in law to do full and complete justice between the parties, the court is bound to depart from the above rule and mould the relief in the light of alter circumstances. circumstances. Hirendra Nath Bakshi vs Ram Jauhar And Ors. on 15 June, 1972..Administration of justice demands that any change either in fact or in law must be taken 1972 cognizance of by the court but that must be done in a cautious manner of relevant facts. Therefore, subsequent events can be taken cognizance of if they are relevant and material. It 21
Ibid., pp. 160-161.
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is basic to our processional jurisprudence that the right to relief must be judge to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lies has come to court and has a fundamental impact on the right to relief or the manner of molding it, brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrial remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation ponds, the power exists, absence of other special circumstances repelling resorts to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. 22 Service of a copy cop y of the the pla plaint int.. Copy Copy of plain plaintt annexed annexed to summo summons. ns. - Every Every summ summons ons shal shalll be accompanied by a copy of the plaint. When Order VII, Rule 14 is read, in the light of what Order v. embodies, it becomes abundantly clear that while annexing of a copy of the plaint with the summons is a condition precedent for effective service of summons on a defendant, furnishing of copy of a document, based on which a plaintiff institutes a suit, or a document, on which a plaintiff relies in support of his claim, need not be furnished to the defendant. 23 Does this, however, mean that a court is powerless, in a given case, to direct the plaintiff to furnish copies of the documents, based on which the plaintiff has instituted the suit, or copies of the documents, on which' the plaintiff relies to support his claim. Sreenivas Basudev vs Vineet Kumar Kothari on 17 17 March, March, 2006.
Chapter 4
Return and Rejection of Plaint
4.1 Return of plaint
The plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. 24 This is done to ensure the jurisdiction of the court. On returning a plaint the judge shall endorse thereon the date of its presentation and return, the 22
Ibid., pp. 161-162. Sreenivas Basudev vs Vineet Kumar Kothari on on 17 March, 2006. 24 A. A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007), p. 307. 23
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name of the party presenting it, and a brief statement of the reason for returning it. Narendar it. Narendar Singh And Ors. vs The Indian Institute Of ... on 28 November, 2013 Where at any state of the suit, the court finds that it has no jurisdiction, either territorial or pecuniary or with regard to the subject-matter of the suit, it will return the plaint to be presented to the proper court in which the suit ought to have been filed. Lutfor Rahman Mollah (Md.) and another Vs. M Safiul-Alam, 2015, 44 CLC (HCD) Rule 10(a) 10(a) prescribe prescribe the procedure to be followed by a court before the plaint is ordered to be returned to be presented to the proper court. It is inserted to obviate the necessity of serving the summons on the defendants where the return of plaint is made after the appearance of the defendants in the suit. An appellate court can also return the plaint to be presented to the proper court. The judge returning the plaint should make endorsements on it regarding a.
the date of presentation;
b.
the date of return;
c.
the name of the party presenting it;
d.
Reasons for returning it.
When the plaint is filed the proper court, after getting it back from the wrong court, it cannot be said to be continuation of the suit.25 As suit must be deemed deemed to commence commence when a plaint plaint is filed in the proper court. court. Vimal CoOp. Housing Society Ltd. vs Rajendrakumar Shankerbhai ... on 5 March, 2003 The order returning the plaint is appealable. The conversion of the suit from one file to another does not involve a change in the nature and character of the suit so as to bar amendment of the plaint. The court had ample jurisdiction to allow the amendment and then to return the amended plaint to the plaintiff for presentation to the proper court.
26
4.2 Return of plaint in a matter relating to person in the service s ervice of the republic
Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil court having been vested on the Administrative Tribunal by the promulgation of special statute the jurisdiction of the civil court in respect of bank employees has been ousted, and in
25
. Vimal Co-Op. Housing Society Ltd. vs Rajendrakumar Shankerbhai ... ... on 5 March, 2003 Nazrul Islam and another v. Jahanara Hassan and other. 46 DLR (1994), 106.
26
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that view of the matter, the plaint was rightly returned by the civil court for presentation to the proper Tribunal having jurisdiction. 27 Modi Entertainment Network & Anr vs W.S.G.Cricket W.S.G.Cricket Pte. Ltd on 21 January, 2003 2003
4.3 Suit under Admiralty jurisdiction when not maintainable
Since the plaintiff is neither the owner nor consignee nor assignee of any bill of lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiff insurer has no locus standi to invoke the jurisdiction of the Admiralty Court under section 6 of the Admiralty Court Act. In The High Court f Judicature At At ... vs Unknown on 19 December, 2013, the plaint is returned to the plaintiff with liberty to file it in appropriate court if not otherwise barred. 28
4.4 Rejection of plaint: Rule 11
The plant will be rejected in the following cases:
(i)Where plaint does not disclose cause action:
If the plaint filed by the plaintiff does not disclose any clause of action, the court will reject it. The power to reject a plaint on this ground should be exercised only if the court comes to the conclusion that even if all the allegations set out in the plaint are proved, the plaintiff would not be entitled to any relief. In that case, the court will reject the plaint without issuing summons to the defendants. defendants . M/S. Pawan Proproties vs Prohlad Rai Dhanania @ Agarwal on 23 February, 2015. 2015 . The reading of the plaint should be meaningful and not formal. But where the plaint does not disclose cause of action, clever drafting, ritual of repeating words or creation of an illusion cannot insert a cause of action in plaint. 29 Khan Mohammad Ameer Vs. Atiqur Rahman and others, 2014, 43 CLC (HCD) (HCD) It is rightly conceded that the High Court could not have acted under Order 7, Rule 11 (a) ( a) of the Code. Where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII, Rule 11 (a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint. plaint.30
27
Mansur Ali v. Janata Bank . 43 DLR (1991), 394. Sadharan Bima Corporation v. Bangladesh Shipping Corporation. 43 DLR (1991), 548. 29 A. A. M Moniruzzaman , pp. 309-310. 30 Mulla's Civil Procedure Code , 13th Edn., Vol. 1, p. 755. 28
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(ii) Where relief claimed is undervalued: Where the relief claimed by the plaintiff is undervalued and the valuation is not corrected within the time fixed or extended by the court, the plant will rejected. In considering the question whether the suit is properly valued or not, the court must confine its attention to the plaint only and should not look at the other circumstances which may subsequently influence the judgment of the court as to the true value of the relief prayed for. 31 Church Of Christ Charitable Trust ... vs M/S. Ponniamman Educationa Educationa Trust ... on 3 July, 2012
(iii) Where plaint is insufficiently stamped: stamped:
Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon a paper insufficiently stamped and the plaintiff fails to pay the requisite court-fees within the time fixed or extended by the court. 32 In the case, the plaint will be rejected. Abul (Md.) Kashem & others Vs. Ashrafuzzaman, 1990, 1990, 19 CLC (HCD) (HCD)
(iv) Whe Where re suit suit is barred barred by law law::
Where the suit appears from the statements in the plaint to be barred by any law, the court will reject the plaint. For instance, where in a suit against the government, the plaint does not state that a „notice‟ as required by section 80 of the Code has be en given; the plaint will be rejected under this clause. But where waiver of such notice is pleaded, the court cannot reject the plaint without giving the plaintiff an opportunity to establish that fact. Sharmila Shetty & Anr vs Hemendra Barooah Benevolent And ... ... on 9 September, 2014. 2014 .The plaint has to be field in duplicate. If the said requirement is not complied with the plaint will be rejected. 33 Where the plaintiff fails to comply with the provisions of rule 9, plaint will be rejected. Sadharan Bima Corporation, Sadharan Bima Bhaban, 33, Dilkusha Commercial Area, Dhaka and another Vs. Messrs Ahad Jute Mills Ltd. and others, 2016, 45 CLC (HCD )
(v) Other grounds including appeal: appeal :
The grounds for rejection of plaint specified in rule 11 of order 7 are not exhaustive. On other relevant grounds also a plaint can be rejected. Thus, if the plaint is signed by a person not 31
Ibid. Abul (Md.) Kashem & others Vs. Ashrafuzzaman, 1990, 19 CLC (HCD) 33 Sadharan Bima Corporation, Sadharan Bima Bhaban, 33, Dilkusha Commercial Area, Dhaka and another Vs. Messrs Ahad Jute Mills Ltd. and others, 2016, 45 CLC (HCD) 32
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authorised by the plaintiff and the defect is not cured within the time granted by the court, the plaint can be rejected rejected.. V.K.John vs W.S.Seetharam on 18 December, 2008 . Where a plaint is rejected by a court, the judge will pass an order to that effect and will record reasons for such rejection. If the plaint is rejected on any of the above grounds, the plaintiff is not thereby precluded from presenting a fresh plaint in respect of the same cause of action. An order rejecting a plaint is a deemed “decree” within the meaning of section 2(2) of the code, and, therefore, appealable. In appealable. In Abul Hasnat v Ershad Ali Begum (42 42 DLR, DLR, 244) it was held that while rejecfing a plaint the court has to consider not the written statement of the defendant but only the plaint of the plaintiff.It was
further held in Chairman, BISE v
Motijheel Model High School (46 46 DLR, DLR, 485) that the power of rejection of of a plaint plaint shall be exercised only if the court comes to the conclusion on mere reading of the plaint that even if all the allegations are proved the plaintiff would not be be entitled to any relief whatsoever.
4.5 Remedies against rejection of Plaint
There are two types of remedies against the order of rejection of a plaint: i.
Rule 13 , Order VII. VII. Specifies that the rejection of the plaint on any of the grounds shall not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Thus the plaintiff has right to file a fresh suit on the same cause of action.. Major General Abdus Salam (Retd) Vs. Bangladesh Election Commission and action another, 2015, 44 CLC (AD)
ii.
Order rejecting a plaint is a decree within the meaning of section
2 and hence an
appeal lies against such order order under under section 96 96 of of the CPC. Smt. Amarjit Kaur & Ors. vs Smt. Satnam Kaur & Ors. on 19 December, 2008 iii.
In Radha Rani Sadhu v Durga Rani Adhikari 47 DLP. DLP. ( HCD) 360 the High Court Division held that an order rejecting a plaint is a decree and and as such appeal lies against such order. However, in case of rejection of plain. plain .
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Chapter 5 Chapter 5 Formation of Plaint
5.1 Draft a Plaint34 It is a settled law that if a person wants justice must come with clean hands. A person whose case is based on falsehood has no right to approach the Court. This basic principle of law must be in mind while drafting or preparing a plaint. “It is “It is well settled position of law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise. The parties thus themselves know what are matters left in dispute and what facts they have to prove at the proceeding and are thus given an opportunity to bring forward such evidence as may be appropriate. The main object of pleadings is to find out and narrow down the controversy between the parties. Contention which are not based on the pleadings pleadin gs cannot be permitted to be raised raise d either at the time ti me of arguments or at the appellate stage." stage."The The New India Assurance Co. Ltd. vs. Surender singh & others. (HC) UAD 2007 , 423. For our convenience we can divide the plaint in three parts:
(1) The Heading and Title (2) The Body (3) The Relief
(1) The Heading (2) The plaint should begin with the name of the court in which the suit is brought, Rule 1 (a), Order VII
34
Appendix A of the Code of Civil Procedure 1908
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For example, “In the court of district judge at Shriatapur Shriatapur”. ”.
“Suit No…………of 2016 2016””, or “Original Suit No…………..of 2016 2016”. ”. Note:-place for number should be left blank, which which will be filled by the court officials.
5.2 The Title
After the heading, title should be written as per Rule 1 ( b), Order VII. VI I. It contains the name , description and place of residence of the plaintiff. Note:- Plaintiff may be one or more and addresses may be different, true details of each of
the plaintiff should be given. The word “Description” includes the name of father and other particulars of the plaintiff. plaintiff . The main purpose is to identify the plaintiff. The T he plaintiff may be minor or a person of unsound mind. A detailed statement regarding this must be given in the plaint (Rule 1 (d) (d) Order VII), because a minor or insane person cannot sue or be sued. He can only sue or be sued through next friend (who may act as a next friend or be appointed guardian for the suit see Order XXXII Rule 1 and 4 CPC).Where there are several plaintiffs, a serial number should be given to each of them. After the name of the plaintiff, name of the defendant or defendants should be written as per Rule 1( 1(c), c), Order VII. And father‟s name and place of residence of each of the defendant should be given , if there are several defendants, a serial number should be given to each of them. Note:- Defendants against whom no relief is claimed may be added as Performa defendants
and written in the last and a statement in this regard must be given in the plaint that why these persons or person added as Performa defendants. In case of minor defendant or a person of unsound mind, A detailed statement regarding this must be given in the plaint (Rule 1( 1(d), d), Order VII.), because a minor or a person of unsound mind cannot be sue or sued. He can only onl y sue or be sued through guardian ad litem; the Court shall appoint a proper person to be guardian for the suit for such minor under the procedure prescribed in Order 32 32,, Rule 3. Form of the title is given below
The forms are given in Appendix A of the Code of Civil Procedure. Order VI ,Rule 3 provides, the forms in appendix A when applicable, and where they the y are not applicable forms of the like character, nearly nearl y as may be, shall be used for all pleadings. These forms shows that 16 | P a g e
a statement as to when the cause of action arose and the court has jurisdiction may be written jointly in one paragraph. Draft a Plaint General:-
1.“A B, son of ……………………r/o……………………….. 1.“A 2………… Plaintiffs". Versus 1.“C D, son of…………………………..r/o……………………… 1.“C 2………… Defendants". In case of minor and unsound mind person, 1.”A B, son of………………………r/o………………………, a minor, by C D, son 1.”A of………………………….r/o……………….his next friend………… 2……………… Plaintiffs.” Versus. 1. E F, son of……………………r/o………………………, a minor, through his guardian GH, son of……………………r/o…………..................., appointed by the order of the court (name of the court etc ) Defendant.” Or In case of a Joint Hindu Hindu Family: Family: 1.“A B, son of ………………….., r/o………………., as manager (Karta) of a Joint Hindu 1.“A Family.” Or In case of representative suit: 1.”A 1. ”A B, son of…………………….., r/o……………………………………….., suing on behalf of himself and of all the Sikh resident of the village…...(name of the village)……….” Or In case of Trust 1. “A B, son of…………………, r/o ……………………., managing trustee Kalumal dharmshala etc”
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5.3 The Body of Body of Plaint
This is the most important part of the plaint. It can be divided into short paragraph. All the facts related to the claim of the plaintiff must be written here in details. Order VII, Rule 1 (e) ( e) requires that the plaint shall contain “the facts constituting constituting the cause of action and when it arose”. Basically it contains two part, under the first part of this clause are all the facts, on the basis of which plaintiff claims his case, in i n other words each and every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms and in the second part of the clause is “when cause of action arose.”? It is related to the date of cause of action. The meaning and definition of the cause of action is given in side bar of the page under the heading notes.
5.4 Date of Cause of Action
The exact date of the cause of action as far as possible should be given in the plaint. Where, however, the exact date is not known, plaintiff can mention the near about date when c ause of action accrued. The main object to mention the date of cause of action is to ascertain whether the suit is within limitation or not.
Jurisdiction: Section 15 15,, 16 16,, 17 17,, 18 18,, 19 19 and and 20 20 of of the civil procedure code lay down the rules for the purpose of jurisdiction. Section 15 15 provides provides "every suit shall be instituted in the court of the lowest grade competent to try it". Section 16 16 provides the provision regarding institution of suit of immovable property and for the recovery of movable property actually under distrait or attachment, it says all the suits relating to immoveable property or for recovery of movable property under distrait or attachment shall be instituted in the court within the local limits of whose jurisdiction the property is situate, subject to the pecuniary or other limitations prescribed by any law. Provided that a suit to obtain relief respecting , or compensation for wrong to, immovable property held h eld by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
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Explanation.- In this section “property” means “property” means property situate in Bangladesh Bangladesh.. Where the immoveable property is situate within jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate. (See section 17 17 of of the code.) In case, where local limits of jurisdiction of Courts are uncertain, sub section (1) ( 1) of Section 18 of the code provides, "where it is alleged to be uncertain within the local limits of the 18 jurisdiction of which of two or more Courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction :Provided that the suit is one with respect to which the court is competent as regards the nature and value of the suit to exercise jurisdiction”. Suits for Suits for compensation compensation for wrongs wrongs to person or movable movable Sectio Section n 19 19 of of the Code provides “Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
5.5 Valuation of Suit
The suit valuation Act,1887 deals with the mode of valuing certain suits for the purpose of determining the jurisdiction of the Court. It is the duty of the plaintiff to write clearly and separately in his plaint the valuation of his claim for the purpose of court fees and of jurisdiction.
Court fee : Court fees are payable according to the provision of The court fees Act, 1870 Relief : (a) .................... ............................................. .................................... ........... ( b) b) ........................................... ........................................................ ............. (c) .................... ............................................. ...................................... ............. Note:- When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it would lead to miscarriage of justice. Thus it is said that
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no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
“It is fundamental that in a civil suit, relief to be g ranted can be only with reference to the prayers made in the pleadings. That apart, in civil suits grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppels, acquiescence, non-joinder of cause of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of TK. One Lakh, Lakh, the court cannot cannot grant decree for TK. TK. Ten lakhs. In a suit for recovery possession of property „A‟, Court cannot grant possession of property „B‟. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.”
5.6 Pleading to be signed
35
Order VI Rule 14 14 C.P.C. C.P.C. provides every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue and defend on his behalf.
5.7 Verification of Pleadings
36
Order VI Rule 15 15 C.P.C. C.P.C. provides the mode of Verification of Pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the the case.
35
Order VI Rule 14 C.P.C Order VI Rule 15 C.P.C
36
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(2)The (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
5.8 Documents relied on in plaint
37
Rules 14 to 17 deal with the production of documents by the plaintiff. Rule 14 enjoins the plaintiff to produce at the time of the presentation of a plaint copies of all documents on which he sues or seeks to rely. It also provides for the consequences of non-production of documents. It lays down that a document which ought to be produce in the court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the t he plaint, and is not produce or entered accordingly, shall not, without the leave of the t he court, be received in evidence on his behalf at the hearing of the suit. 38 Sh. R. Vijayanandan Reddy vs Sh.Pradeep K.Dhingra & Ors. on 9 September, 2010
This provision, however, does not apply to the following documents: a. Documents reserved for the purpose of cross-examination cross- examination of the plaintiff‟s witnesses; or b. Documents handed over to a witness merely to refresh his money.
5.9 Object and Effect on suit for Plaint:
Through plaint, plaintiff describes his cause of action and other necessary particulars to seek remedy from court for redressed of his grievances grievances for formation a civil suit. suit. It mu must be reiterated that the Court cannot desist the pleadings into several parts and consider whether each one of them disclose the cause of action. It is well settled that there cannot be a partial rejection of the plaint. It is only when the plaint read as a whole does not disclose any cause of action. Can the same be rejected under Order VII Rule 11 (a) (a) Rejection of only a particular portion of the plaint is not permissible? It must also be remembered that the pleadings must
37
Rules 14 to 17 of Order VII
38
Sh. R. Vijayanandan Reddy vs Sh.Pradeep K.Dhingra & Ors. on 9 September, 2010
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only contain a statement in a concise forms of material facts on which the party realise for his claim or his defense as the case may be but in the evidence by which they are to be proved. (See Order VI, Rule 2(1)]. It is also well settled that the plaint must be read as a whole to ascertain that it discloses a cause of action. The plaint cannot be defective and those portions which do not disclose cause of action cannot alone be rejected. Either the plaint survives in its entirety or is rejected in its entirety. If a defendant states that no relief can be claimed against him on the averments contained in the plaint itself, he cannot ask for rejection of the plaint under Order VII, VII, Rule 11 (a) (a) as long as the plaint as a whole discloses a cause of action although against other defendants. Such a defendant can only, propose in both the provisions of Order I Rule 10 for seeking deletion of his name as a party to the suit. Keeping these principles in mind, one has to examine the facts of the present case. Nahar Spinning Mills Ltd. vs Vijay Hosiery Co. Ltd. And Ors. on 4 January, 2006 , . It is admitted principle that no plaintiff can go beyond his plaint. 39 Therefore, no plaintiff can demand what is not claimed in his plaint. Similarly no plaintiff can produce any evidence, which is be yond his plaint.
Chapter 6 Chapter 6 Conclusion
6.1 Importance of a Plaint
Plaint plays important role throughout whole trial of any civil suit. It is admitted principle that no plaintiff can go beyond his plaint. Therefore, no plaintiff can demand what is not claimed in his plaint. Similarly no plaintiff can produce any evidence, which is beyond his plain.. plain
6.2 Conclusion
In framing a suit unwanted hazards should be avoided. Lengthy civil suit is a lengthy process in a mans life the same is a wastage of energy and time. Lengthy civil suit engulfs the lifetime of a party. Competency of a court in disposing a civil suit is of mare importance than anything else. Legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honorable members. Although the entry to the profession can be professional has to be maintained by its members. member s. Every Civil suit must be duly stamped, and must be signed with due verification. Success of a party lies, in filing civil suit with due
39
. Nahar Spinning Mills Ltd. vs Vijay Hosiery Co. Ltd. And Ors. on 4 January, 2006
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care. Improper plaint gives birth to, improper results and the same affects the life and property of a party, care should be taken over filing a civil suit, in matters of court fees, jurisdiction and specification of the suit land land..Lawyers must be careful in discharging their duties and in discharging the duties bestowed upon them. It should be taken case of that a man should not be tried in his absence; by keeping him ignorant over the fact and actual matters. Hence in a civil suit the summons must contain a direction whether the date fixed is for settlement of issues only or for final disposal of the suit. In the latter case, the defendant should be directed to produce his witnesses. The court must give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed. The summons should also contain an order to the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely on in support of his case. A party in litigation must remember that good plaint gives birth to a good decree. As such to achieve a good decree plaint must be duly filed. Otherwise the same may deprived the party from enjoying the fruits of a civil suit.
Book reference: 1. C.K. Takwani: Civil Procedure with Limitation Act , 1963 1963,, Ed. 7th; 2. Mahmud Wazedd: Wazedd: Hand book on code code of civil procedure procedure;; 3. Mahbudul Islam: Law of Civil Procedure, Procedure, ed.2 ed.2nd , Volume 2 ( (or or 21 21r. r. 60 60 to to end) 4. Md. Abdul Halim: Halim: Text Book on Civil Procedure 5. A. M Moniruzzaman, Moniruzzaman, Civil Procedure Procedure Code, 3rd ed., (Dhaka: ed., (Dhaka: Shams Publications, 2007 6. Mulla's Civil Procedure Procedure Code, Code, 13 13th th Edn., Edn., Vol. 1, p. 755. 7. The Code of Civil Procedure, 1908 8. Md. Abul Kalam Azad, The Code of Civil Procedure, 3rd ed ., ., (Dhaka: Lipi Law Book House, 2008)
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