Calcutta High Court (Appellete Side)
Nellimarla Jute Mills Company Ltd vs Rampuria Industries & Investments Ltd on 15 May, 2009
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Present:
The Hon'ble Justice Jyotirmay Bhattacharya C. O. No. 3144 of 2008 with C.O. No. 3974 of 2008 Nellimarla Jute Mills Company Ltd.
-Vs-
Rampuria Industries & Investments Ltd.
For the Petitioner : Mr. Surajit Mitra,
Mr. Debasish Roy,
Mr. B.K. Jain.
For the Opposite : Mrs. Manju Agarwal,
Party. Mr. Bajrong Manot.
Judgment On : 15-05-2009.
Two revisional applications have been filed by the defendant/petitioner, challenging a common order being no.43 dated 26th August, 2008 passed by the learned Chief Judge, City Civil Court at Calcutta in a suit filed by the plaintiff/opposite party herein, which is registered as T.S. No.1539 of 2004.
By the impugned order, two applications filed by the respective parties were disposed of by the learned Trial Judge. The plaintiff's application for amendment of plaint was allowed and the defendant's application under Order 7 Rule 11 of the Civil Procedure Code, was rejected by the learned Trial Judge by the impugned order. Hence, two revisional applications have been filed by the defendant/petitioner herein. The revisional application being C.O. No.3144 of 2008 is directed against that part of the impugned order by which the defendant's application for rejection of the plaint was rejected. The other revisional application being C.O. No.3974 of 2008 is directed against that part of the impugned order by which the plaintiff's application for amendment of plaint was allowed.
Mr. Mitra, learned Advocate appearing for the petitioner submitted that when the defendant applied for rejection of the plaint under Order 7 Rule 11 of the Civil Procedure Code, the learned Trial Judge ought to have considered the merit of the petitioner's said application with reference to the original pleading of the plaint, as it stood, as on the date of presentation of the plaint in the said suit. Mr. Mitra, thus, contended that if the Court finds that the plaint, as it stood at the time of its presentation, is liable to be rejected on any of the grounds as mentioned in Order 7 Rule 11 of the Code of Civil Procedure, the Court has no other alternative but to reject the plaint.
According to Mr. Mitra, if the Court finds that the plaint is liable to be rejected on any of the grounds as mentioned in the order 7 Rule 11, then the Court is not required to consider the plaintiff's application for amendment of plaint, as no useful purpose will be served by such consideration, as further adjudication of the dispute involved in such a suit will not be needed. Mr. Mitra, thus, contended that if ultimately it is found that the plaint is not liable to be rejected, then only the plaintiff's prayer for amendment can be considered. In support of such submission Mr. Mitra relied upon a decision of this Hon'ble Court in the case of Sailesh Nath Bisi -Vs- J. Chowdhury & Ors. reported in 50 CWN 504.
By referring to the pleadings in the plaint of the said suit, Mr. Mitra contended that the plaint does not disclose the material particulars as is required to be disclosed as per Order 7 Rule 1(c) and/or Order 7 Rule 3 of the Code of Civil Procedure read with appendix 'A' relating to the pleadings of the title suits appended to the Code of Civil Procedure. Mr. Mitra contended that even the schedule of the suit property has not been mentioned in the plaint though such disclosure is a mandatory requirement under the Code of Civil Procedure.
Mr. Mitra, thus, contended that the learned Trial Judge ought to have rejected the plaint as the plaint as it stood as on the date of its presentation, does not fulfill the requirement as mentioned in Order 7 Rule 1(C) and/or Order 7 Rule 3 read with appendix 'A' appended to Civil Procedure Code.
Mr. Mitra further contended that the plaintiff, in fact, wanted to remove those defects in the plaint by supplying the lacking materials therein by way of amendment. This shows that the plaintiff himself admitted that the plaint is liable to be rejected in the absence of such amendment.
By relying upon the aforesaid citation of this Hon'ble Court Mr. Mitra ultimately contended that the learned Trial Judge ought to have rejected the plaint and consequently the plaintiff's prayer for amendment of plaint ought to have been rejected.
Mrs. Agarwal, learned Advocate appearing for the opposite party refuted such submission of Mr. Mitra by contending inter alia that when the defects in the plaint are curable by amendment and when the plaintiff took the step for curing those defects by way of amendment even before filing of the application for rejection of the plaint by the defendant, the learned Trial Judge rightly considered the merit of the plaintiff's application for amendment of plaint first before considering the merit of the defendant's application for rejection of plaint.
Mrs. Agarwal pointed out to this Court that, in fact, the said plaint was originally filed before this Hon'ble High Court in its ordinary Original Civil jurisdiction by following the rules of pleadings as it was required to be followed in presenting a plaint before the Original Side of this Hon'ble Court. Mrs. Agarwal further pointed out that since the plaint was subsequently returned for want of jurisdiction of this Hon'ble Court, the said plaint was presented to the City Civil Court having jurisdiction to try the said suit, in terms of the order passed by the Hon'ble Supreme Court. Mrs. Agarwal further pointed out that when the plaint was re-filed in the City Civil Court, the petitioner was called upon, to effect certain alteration in the pleading to bring the plaint in conformity with the rules of pleading applicable to the said Court. Accordingly, the said application for amendment of plaint was filed, for bringing the plaint in conformity with the rules of pleading applicable to the Court. Mrs. Agarwal further pointed out from the plaint that though the schedule of the suit property was not given before the verification part of the plaint but the description of the suit property was given in the plaint and the schedule of the suit property was mentioned particularly in annexure 'B' to the plaint which is a part of the plaint. Mrs. Agarwal, thus, submitted that even though the description of the suit property was mentioned in annexure 'B' to this plaint but still then for avoiding any further complication, amendment was sought for introducing the description of the suit property immediately before its verification part of the plaint. Mrs. Agarwal, thus, submitted that the amendments which were sought for are all formal in nature and if such amendment is allowed, the nature and character of the suit will not be changed. As such, according to Mrs. Agarwal the learned Trial Judge did not commit any illegality in allowing the plaintiff's application for amendment in the facts of the instant case and since after such amendment is made, the plaint fulfills the requirement of Order 7 Rule 1 and Order 7 Rule 3 of the Code of Civil Procedure as well as the appendix 'A' to the Civil Procedure Code, the plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure.
Mrs. Agarwal, thus, supported the order impugned in this revisional application. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case.
In fact, the question as to whether the Court can consider the plaintiff's prayer for amendment of the plaint when it is found that the plaint, as it stood, as on the date of presentation of the plaint, is liable to be rejected on any of the grounds under order 7 Rule 11 of the Code of Civil Procedure or not, is no longer a res integra in view of the decision of this Hon'ble Court in the case of Ahmed Hossein -Vs- Chembelli reported in AIR 1951 Cal 262 wherein the following principle of law was laid down after taking into consideration various decisions of our High Court as well as of different other High Courts including the decision of our high Court which was cited by Mr. Mitra:-
"Para 6 : What then is the object of Order 7 Rule 11? The Rule contemplates four cases viz: (a) where the plaint does not disclose a cause of action; (b) where the relief claimed has been undervalued; (c) where Court fees of full value have not been supplied and (d) where the suit appears on the face of the plaint to be barred by any law. In none of these cases even if the rule had not been enacted a decree could have been passed. In cases (a) and (d) no decree could be passed for the reason that either there was no cause of action on which a decree could be passed or that the suit was barred. In cases (b) and (c) by reason of Sections 6 and 28 of the Court-fees Act, the plaint would be invalid and no Court would file or record it. In the absence of a provision like Order 7 Rule 11 in cases (a) and (b) the suit would have to be dismissed and in cases (b) and (c) the plaint would not be entertained or if entertained the suit would have to be dismissed. Order 7 Rule 11 provides that the suit will not be dismissed but only the plaint will be rejected. Order 7 Rule 13 provides that if the plaint is so rejected the plaintiff will not be precluded by reason of such rejection only from filing another suit on the same cause of action. The object of Order 7 Rule 11, therefore, is really to prevent the ordinary consequences of dismissal viz., to prevent the filing of another suit on the same cause of action that is to say prevent another suit filed on the same cause of action from being barred. If such is the object, it cannot be defeated by allowing the plaint to be amended so as to remove the defect and prevent the operation of Order 7 Rule 11. The result of saying that when Order 7 Rule 11 applies the plaint cannot be amended and would be to say that it was the intention of the Legislature that the parties would be compelled to have the suit dismissed and start afresh and made to throw away large costs incurred in the first suit. It strikes me as absurd to say that this was what the legislature intended. In my view, therefore, Order 7 Rule 11 does not in the least affect or take away the Court's powers or duties as to amendment and all necessary amendments should be made even if order 7 Rule 11 applies."
The said decision clarifies the duty of the Court in such circumstances by holding inter alia that making of amendment is not really the matter of power of a Court but its duty, so that substantial justice may be done for which alone Courts exist. It was further held therein that as a fundamental principle, the law strongly favours an amendment where it is necessary for ends of justice and it would require the clearest language to alter the very beneficial legal principle. It was further held therein that the object of Order 7 Rule 11 is to prevent another suit filed on the same cause of action from being barred. It was clearly held therein that Order 7 Rule 11 does not take away the power of the Court to allow amendment of the plaints when it discloses no cause of action.
The said conclusion was drawn by this Hon'ble Court in the said decision by considering the provision of Order 7 Rule 11 of the Code of Civil Procedure as well as the provision contained in Order 7 Rule 13 of the Code of Civil Procedure. The effect of the provision contained in Order 7 Rule 13 of the Civil Procedure Code is very significant in the present context as the said provision makes it clear that even the rejection of the plaint on any of the grounds mentioned in Order 7 Rule 11 of the Civil Procedure Code shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the said cause of action. The said provision makes it clear that even rejection of a plaint will not debar a party from filing a fresh plaint by curing the defects on the selfsame cause of action. Thus, the conjoint reading of Order 7 Rule 11 and Order 7 Rule 13 of the Civil Procedure Code gives sufficient indication that if plaintiff wants to cure the defects in the plaint by supplying the lacking materials in the plaint and/or to cure any other defects therein, as the case may be, the prayer for amendment should not be rejected and if after allowing the amendment, the Court finds that the requirements for maintaining the plaint are fulfilled, the plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure.
On perusal of the decisions cited by Mr. Mitra, this Court finds that the effect of the provision of Order 7 Rule 13 of the Civil Procedure Code was neither taken note of, nor considered in the said decision and as such, in my view, the said decision does not lay down any binding precedent.
In my view, the course which was adopted by the learned Trial Judge in the instant case is absolutely justified as the said course conforms to the principles as laid down in the decision of this Hon'ble Court in the case of Ahmed Hossein -Vs- Chembelli (supra).
This Court does not find any illegality in the impugned order whereby the plaintiff was allowed to amend his plaint as those amendments were all formal in nature and no inconsistent or contradictory pleading was allowed to be introduced nor any admission was allowed to be withdrawn from the original pleading by way of such amendment.
This Court finds on scrutiny of the plaint, as it now stands after amendment, that the plaint is not liable to be rejected as the defects in the plaint which were pointed out by the defendant in its application under Order 7 Rule 11 of the Civil Procedure Code, were all rectified by way of amendment.
Thus, this Court does not find any illegality in that part of the impugned order by which the defendant's application for rejection of the plaint was rejected by the learned Trial Judge.
Before concluding, this Court also wants to keep it on record that when the plaintiff's application for amendment was filed prior to the filing of the defendant's application for rejection of plaint, the learned Court below did not commit even any material irregularity in disposing of the plaintiff's application for amendment of the plaint first before dealing with the defendant's application for rejection of plaint.
In the aforesaid context, this Court holds that no interference with the impugned order is warranted in the facts of the instant case. Thus, both the revisional applications stand rejected.
Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.
( Jyotirmay Bhattacharya, J. )