Advocate's Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy. To this end, we aim to create a repository of columns on the essentials of court practice – ranging from civil suits to criminal trials, from ADR procedures to enforcement of decrees and judgments, and more.
In the previous column of the Advocate’s Diary series, we discussed the aspects of additional pleadings in civil trials, and the procedure and law governing the amendment of pleadings.
In this column, we shall delve deeper into amendment of pleadings and look at how courts often balance procedural rights of parties when deciding an application under Order VI Rule 17 of the Code of Civil Procedure (CPC). We shall then shift our focus to an oft-used tool by defendants in civil trials to bring a summary closure to a case – an application under Order VII Rule 11 of the CPC to reject the plaint.
We will investigate the circumstances which allow a defendant to prefer such an application, the difference in the scope of powers to reject the plaint as opposed to its powers under Order VII Rule 10 of the CPC to return the plaint (for want of jurisdiction) and the development of the judicial test to decide such applications by courts.
Amendment of Pleadings: Balancing the procedural rights of parties in a civil suit
An amendment made to an existing pleading in a civil suit is to allow parties to supplement and support its existing case, which may have been necessitated due to a change in the existing facts and circumstances. However, as courts have time and again reiterated, the recourse available under Order VI Rule 17 of the CPC cannot be availed by parties to put forth a new case altogether, and to plead an entirely different position. The reason is – courts will protect the interests of the counter-party when a suggested amendment seeks to plead an entirely different case in the suit, since the counter-party will be prejudiced in defending such a case afresh.
As we discussed in our column on comprehensive pleadings, it is crucial for the party to file a comprehensive main pleading, which contains all its averments and main position in the suit, since an amendment to the core of such pleading will not be allowed by the court under Order VI Rule 17 of the CPC.
While the general disposition of courts towards amendment of pleadings is an accommodating one, it will protect the interests of the counter0party – especially when an amendment seeks to ‘displace the suit’ and displace the counterparty of a ‘valuable right which has already accrued to it’. These observations were made by the Supreme Court in its seminal decision in Modi Spinning and Weaving Mills Co Ltd v. Ladha Ram, where the Court upheld the trial court’s decision to reject an application filed by the defendant to amend its written statement after it attempted to resile from admissions made in its pleadings. The Court held that such an attempt was clearly a mala fide attempt by the defendant to cover up its admissions, and to deny the plaintiff of a right which had accrued to it in law.
Once a court allows an amendment of pleading application and takes the amended pleading on record, the court will balance the procedural right of the counter-party to rebut and respond specifically to such amended pleadings. In Kedar Nath and others v. Ram Parkash and others, the Delhi High Court held that upon the filing of an amended pleading, the counter-party ought to be allowed to amend its pleading, to balance the procedural rights of the parties. The Court held that such leave should not just be granted in exceptional cases, but should be allowed generally – and in some cases, the court might also permit the filing of additional pleadings subsequent to an amendment.
Return of plaint v/s rejection of plaint: Difference in scope and jurisdiction
Ordinarily, a civil trial will see the court decide the dispute between the parties after the filing of comprehensive pleadings, oral and written evidence (with rigorous cross-examination of the witnesses) and arguments on law being presented by the parties’ pleaders. However, the framers of the CPC recognised that civil proceedings are often instituted frivolously, with an intention to harass and compel a counter-party for recovery of monies, possession of property etc. In order to guard against the institution of such vexatious civil proceedings, Section 53 read with Order VII Rule 11 of the CPC allows the court to reject a plaint after considering an application to such effect by the defendant.
The defendant can seek the rejection of plaint on the grounds specified under sub-clauses (a) to (f) – which will be detailed further in the next section. However, as was held by the Supreme Court in K Akbar Ali v. K Umar Khan, the object and purpose of Order VII Rule 11 of the CPC is to prevent unmeritorious litigation from burdening the time and resources of the cour. The court can exercise its inherent powers to prevent such litigation even over and above the grounds laid down in Order VII Rule 11.
On the other hand, Section 35 read with Order VII Rule 10 of the CPC regulate the power of a civil court to return a plaint which has been filed by a party before a court that does not have the necessary jurisdiction to entertain the suit. As we discussed in our column on jurisdiction issues under the CPC, a court can only entertain a plaint filed by a party if (a) it has jurisdiction to entertain suits dealing with the said subject matter, (b) the cause of action which forms the basis of the suit, or the residence of the parties etc. falls within the court’s territorial jurisdiction, and (c) the value of the suit falls within its pecuniary jurisdiction. Under Order VII Rule 10 of the CPC, a court is only empowered to return a plaint on the ground that it does not have the jurisdiction to entertain it, and that it should be filed before the court having appropriate jurisdiction. In doing so, a court is required to intimate the plaintiff of its decision to return the plaint under Rule 10A. The plaintiff is then entitled to file an application before the court to direct appearance of the parties before the appropriate court where the suit will be freshly instituted.
A court has broader powers to reject plaints under Order VII Rule 11 of the CPC, on a number of grounds to prevent parties from instituting vexatious and frivolous civil proceedings.
Rejection of plaint: Essential parameters
While considering an application for rejection of plaint, a court will assume the contents and averments made in the plaint to be true, and will not consider any of the averments, defences and objections raised by the defendant in its written statement or otherwise. This is because an application for rejection of a plaint is to determine whether the plaint, on its own, is barred by any of the grounds laid down in Order VII Rule 11 of the CPC – which require it to be summarily dismissed by the court. If the court is of the opinion that the plaint falls into any of the grounds under Order VII Rule 11 of the CPC, then the plaint is liable to be dismissed, as was held by the Supreme Court in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others.
Moreover, a plaint can only be rejected as a whole, and not in parts, as was held by the Supreme Court in Sejal Glass Limited v. Navilan Merchants Pvt Ltd, which explained that the power under Order VII Rule 11 was to be exercised when the court comes to the conclusion that the defendant ought not to be placed with the burden of defending vexatious and frivolous proceedings through a full-fledged trial. However, if a plaint only disclosed a lack of a cause of action against one of multiple defendants, or contained few reliefs which were barred by law, such defects could be cured without a rejection of the plaint under Order VI Rule 16 of the CPC.
There are six grounds on which a defendant can prefer an application under Order VII Rule 11 of the CPC for rejection of a plaint.
(a) Where the plaint does not disclose a cause of action, which provides the Plaintiff a right to sue
In order to assess whether the plaint can be rejected on the ground of non-disclosure of a cause of action in favour of the plaintiff, the court is required to treat all of the pleadings and averments in the plaint as germane, and cannot read any of the averments of factual contentions in isolation. If, on such reading, the court concludes that even if all of the averments and contentions are assumed to be correct, a cause of action is not disclosed in favour of the plaintiff, such a plaint will be rejected as was held by the Supreme Court in T Arivandanam v. TV Satyapal and another.
(b) Where the plaint is undervalued
If the plaintiff undervalues the reliefs claimed in the suit filed, which consequently reduces the court fee paid on such a suit, and such a defect is not cured in time, the plaint can be rejected by the court under Order VII Rule 11(b) of the CPC. Courts will often recognise that accurately determining the value of a particular suit might be difficult for prospective plaintiffs, and will refuse to reject plaints where the plaintiff has provided a plausible estimate of the valuation of the suit, and has paid court fee towards the same. This also laid down by the Supreme Court in Meenakshi Sundaram Chettiar v. Venkatachalam Chettiar. The plaintiff cannot, however, arbitrarily undervalue the suit in order to evade its obligation of paying the requisite court fee.
In such events, the court will allow the plaintiff an opportunity to cure the defect of undervaluation and payment of deficit court fee – which can be cured by the plaintiff under Section 149 of the CPC. However, if the plaintiff fails to cure such a defect within the time provided by court, the plaint can be rejected by the court under Order VII Rule 11(b).
(c) Where the plaint is insufficiently stamped
An insufficiently stamped and authorised plaint, much like an undervalued plaint, can be taken on record and proceeded with if the plaintiff cures such defects in the time provided by the court. Moreover, the defect of insufficient stamping is applicable in respect of the plaint itself, and not on the documents produced along with the plaint, the stamping of which is addressed at the stage of evidence. A court will, therefore, refuse to entertain an application under Order VII Rule 11(c) if the defendant alleges insufficient payment of stamp duty in respect of a suit document, and not on the plaint itself.
(d) Where the plaint is barred by law
Where, on the basis of the pleadings and averments made in the plaint, the court can come to the conclusion that the reliefs claimed in the suit or the institution of the suit itself is barred by a law in force at the time, the court shall reject such a plaint under Order VII Rule 11(d) of the CPC. Under Rule 11(d), the court has the power to reject plaints which have been filed outside the limitation period prescribed under the Limitation Act 1963.
The Supreme Court, in Raghwendra Sharan Singh v. Ram Prasanna Singh, held that a suit clearly barred by limitation will be rejected under Order VII Rule 11(d) of the CPC, and the plaintiff cannot cover up the bar of limitation with inventive drafting in its plaint.
(e) Where the plaint is not filed in duplicate
(f) Where the plaint is unaccompanied by a list of documents as required under Order VII Rule 9 of the CPC
Order VII Rules 11(e) and (f) are a reminder to the plaintiff that non-compliance with procedural requirements can be fatal to the institution of the suit. However, the court will first raise these defects on the plaint, and allow the plaintiff an opportunity to cure the same within a specified time frame, and will only reject the plaint if the plaintiff chooses to remain lax over procedural compliance. This was upheld by the Supreme Court in the seminal decision of Salem Advocate Bar Association v. Union of India.
The power to summarily reject plaints is, therefore, a vital tool in the court’s arsenal to nip vexatious and frivolous suits in the bud, and ensure that defendants are not burdened with defending such suits at their cost and time. Such proceedings are effectively an abuse of the process of law, and courts will even prevent plaintiffs from filing a subsequent suit on the same cause of action and facts when it was previously rejected under Order VII Rule 11 of the CPC.
Tanvi Dubey is an independent practitioner at the Supreme Court of India, with a diverse practice ranging from civil, commercial and constitutional disputes to service matters before the Supreme Court and other fora in Delhi.
Sumit Chatterjee is a civil and commercial dispute resolution lawyer at Arista Chambers, practicing before the Karnataka High Court, trial courts and a wide array of tribunals in Bangalore.
The authors would like to acknowledge the efforts of Harshit Jindal (fourth year student at NLSIU) and Archit Sinha (third year student at NLSIU) for their research assistance on this column.