The next ground of attack is that the defendant were not supplied copies of the documents along with the plaint and, therefore, the plaint is liable to be rejected. There is nothing in Rule 11 of Order 7 to conclude that if the documents, on which the plaintiff rely, are not sent to the Defendant along with the copy of the plaint accompanying the summons, then the plaint is liable to be rejected.
HIMACHAL PRADESH HIGH COURT
Shobit Construction And Anr. Etc. vs T.K. International Ltd. on 7 March, 2005
Equivalent citations: AIR 2006 HP 4, 2006 (1) ARBLR 510 HP
1. The order will dispose of OMPs No. 32 and 57 of 2004 in Civil Suit. No. 52 of 2003 and OMPs No. 12 and 56 of 2004 in Civil Suit No. 51 of 2003 as parties in both the suits are same and one of the questions raised is same in both the suits.
2. O.M.P. No. 32 of 2004 is filed by the defendant under Section 8 of the Arbitration andConciliation Act, 1996 for referring the dispute raised in Civil Suit No. 52 of 2003 to the Arbitration. By OMP No. 57 of 2004 in Civil 3uil No. 52 of 2003 and 58 of 2004 in Civil Suit No. 51 of 2003 under Order 8, Rule 1 of the Code, the plaintiffs pray for closing the defence of the defendant for having failed to file the written statement within the time limited under Order 8, Rule1 of the Code of Civil Procedure. OMP No. 12 of 2004 (Civil Suit No. 51 of 2003) is filed by the defendant for rejection of the plaint.
3. Plaintiff in Civil Suit No. 52 of 2003 is M/s. Shobit Construction and another and in Civil Suit No. 51 of 2003 is Shobit Fabricator and another. The defendant is the same in both the suits.
4. Plaintiff in both the suits claim recovery of the amount due to the plaint if along with pendente lite and future interest.
5. In answer to writ summons. Mr. Ramnik Sharma and Mr. S.K. Aggarwal, Advocates appeared for the defendant -Company on December 30, 2003 in both the suits, but written statement was not filed. Learned counsel for the defendant represented that the defendant has not been supplied the documents but the learned counsel for the plaintiff insisted that the documents have been supplied and affidavit in this respect has already been filed in the Court.Notwithstanding this stand, the Plaintiffs counsel agreed to supply the copies of the documents on that date itself and the matter was adjourned by the Registrar for filing of the written statement and reply to Misc. Petition No. 386 of 2003 within four weeks. Neither written statement nor reply to the petition was filed by the defendant within the time granted by the Registrar.
6. When the matter came up before the Registrar on March 3, 2004. six weeks' time was sought and granted for filing the written statement. The matter was directed to be listed on April 21, 2004. On April 21, 2004, the Registrar found that the written statement was not filed even though the period of six weeks granted to the defendant to file the written statement had expired. Learned Senior Counsel for the Plaintiff contended that the defendant has lost the right to file written statement in view of the pro- | visions of Order 8, Rule1 of the Code of Civil Procedure. The order of the Registrar in Civil Suit No. 52 of 2003 reads :
30-12-2003 ; Present : Mr. Sushi! Kukreja, Adv. for (he plaintiff. Mr. Ramnik Sharma. Adv. along with Mr. S. K. Aggarwal, Advocate for the defendant. The learned counsel for the defendant states that he has not been supplied with the documents. However, the counsel for the Plaintiff states that he has supplied the documents and the affidavit has already been filed. The counsel for the plaintiff states that despite having sent the documents, he will again supply the documents today. Now the matter be listed for filling reply to OMPs No. 386 and 456 of 2003 along with written statement within four weeks.
Sd/ (P.C. Sharma) Registrar (Inspection).
7. Similarly, the order of the Registrar in Civil Suit No. 51 of 2003 reads ;
30-12-2003. Present : Mr. Sushil Kukreja, Adv. for the plaintiff.
Mr.Ranmik Sharma Adv. for the defendant along with Mr. S. K. Agarwal, Adv. The learned counsel for the defendant states that he has not been supplied with the documents. However, the counsel for the plaintiffs states that he has supplied the documents and the affidavit, has already been filed. The counsel for the plaintiff states that, despite having sent the documents, he will again supply the documents today. Now the matter be listed for filing reply to OMP No. 385/2003 along with written statement within four weeks.
(P. C. Sharma) Registrar (Inspection) 30-12-2003
8. On February 26, 2004, the defendant filed an application (OMP No. 32 of 2004) in Civil Suit No. 52 of 2003 under Section 8 of the Arbitration and Conciliation Act,1996 (Arbitration Act for short) for referring the dispute between the parties to an Arbitrator.
9. OnMarch 22, 2004, the plaintiff moved a formal application (OMP No. 57 of 2004) for directions that defendant-Company has lost its right to file written statement and for striking of the defence of the j defendant Company Similar application was I filed by the Plaintiff (OMP No. 56 of 2004) in Civil Suit No. 51 of 2003. OJVJP No. 32 _of 2004 in C.S. No. 52 of 2004
10. So far this application of the defendant-Company for referring the dispute between the parties to an Arbitrator is concerned, Section 8 provided that if an action is brought before a .Judicial Authority and such action is subject, to an arbitration agreement, then on an application of a party before or at the time of filing the written statement, the Judicial Authority shall refer the parties to arbitration. Section 8 of the Arbitration Act reads :
8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. Notwithstanding that an application has been made under sub section (1) and that the issue is pending before the judicial authority, arbitration may be commenced or continued and an arbitral award made.
11. A careful reading of the provision shows that before a. Court exercises its powers, it must be satisfied.
(a) there is an arbitration agreemeni;
(b) a party to the agreemeni has brought an action in the Court against the oilier party;
(c)such action is subject-matter of the arbitration agreement provided the party moves the Court for referring the parties for arbitration before it submits his first statement on the action brought by the other party.
12. The defendant-Company has neither filed the original arbitration agreement nor any duly certified copy thereof' in terms of Sub-section (2) of Section 8 of the Act. On this ground alone, lite application of the defendant-Company is liable to be dismissed.
13. Mr. B. C. Negi, learned counsel for the defendant, however, refers to the contract agreement between the parties, filed by the plaintiff, dated May 1 !, 1999 which has been admittedly signed by the parties and submits that this agreement provides for reference to an arbitrator of any dispute which may arise between the parties. I do not find any arbitration clause in the agreement. Mr. 13. C. Negi faced with the situation, refers to clause: (j) of the contract agreement which reads:
(j) The term "C.P.W.D. Specifications" shall mean Central Public Works Department Specifications on the date of acceptance and with revision if any and with up-to-date corrections.
14. By no stretch, this clause can be construed to be an arbitration agreement. What this clause says is that the term "C.P.W.D. Specifications" would mean Central Public Work Department Specifications at the time of acceptance and with revision. if any, and with up-to-date corrections. In other words, the specifications for the construction in question shall be that of Central Public Works Department with up-to-date collections. There, however, is an escalation clause in terms of Clause 32 which provides that the price offered by the Contractor is fixed for one year from the date of the commencement of the contract agreement and no escalation in price shall be permissible during that year. It further provides that it the Employer cancels the contract under condition Nos. (ii) to (vii), then the Employer would complete the work by any means, subject to arbitration clause, and it the cost so specified exceeds the money held by the Employer as otherwise due to the contractor, the Employer may recover the deficit from the Contractor by other means.
15. Even Clause 32 does not spell out any arbitration clause. As already noticed, there is no arbitration clause in the contract agreement and, therefore, any dispute between the parties relating to contract agreement is subject to the jurisdiction of the Civil Courts. Action brought by the plaintiff cannot be said to be subject of any arbitration agreement.
16. The application being misconceived 11 dehors the contract agreement, is dismissed.
(O.M.P. No. 57 of 2004 in C.S. No. 52 of 2003 (O.M.P. No. 56 of 2004 in C.S. No. 51 of 2003)
17. So far aforesaid two applications of the Plaintiff for striking off the defiance off the defendant Company, are concerned, the question which arises for consideration is whether the defendant has lost his right to file written statement as provided under Order 8, Rule 1, as substituted by the Code, of Civil Procedure (Amendment Act, 2002).
18.Order 8, Rule 1 may be reproduced for convenience.
O. 8, R. 1: Written statement . The defendant shall, within thirty days from the date of service of summons on him, present a written statement, of his defence :Provided 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 oilier 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.
19. It is true that a reading of the above provision makes it clear that the defendant has to file the written statement of defence within thirty days of the date of the service of the summons on him. However, this period of thirty days can be extended by the Court at. the instance of the defendant for the reasons to be recorded in writing but such extended period cannot be later than ninety days of the date of service of the summons on the defendant.
20. In the present ease, the record shows that the Plaintiff has given three addresses for the service of the defendant-Company. Summons were served on the defendant at its registered office at Bhubaneshwar on December 5, 2003 at 10.25 a.m. as recorded by one Laxmi Narain Panda who received summons on behalf of the defendant-company. There is also endorsement of the concerned Process Server that the summons were served on the defendant-Company at the given address which is authenticated by the Registrar of the Civil Court at Khurd at Bhubaneshwar. Summons were also served on the defendant-Company on December 2, 2003 at their Gurgaon address which were received by one Satya Pal Singh at. the instance of its Secretary Mr. Pardeep. Summons were also served on the defendant on December 20. 2003 at its site office at Toshali Royal View Resort Shilion Bagh, Post Office Mundaghat, Tehsil and District Shimla.
21. The counsel for the defendant Mr. Ramnik Sharma, Advocate filed power of attorney on December 6, 2003. The defendant-Company, in the circumstances, it cannot be disputed, was served on December 2, 2003. Power of attorney was field by its Advocate on December 6, 2003.
22. It is in this background that. Mr. R. L. Sood, learned Senior Counsel for the plaintiff pleaded before the Registrar (Vigilance) on April 21, 2004 that the defendant-Company has lost the right to file the written statement and subsequently filed formal application to this effect. Now commuting period from December 2, 2003, a period of ninety days expired on March 2, 2004 and the defendant-company under Order 8, Rule 1 lost its right to file the written statement, on March 3, 2004 even though the period was extended by the Registrar on March 3, 2004 by six weeks but the defendant even within the further extended time of six weeks, did not file the written statement. In this factual matrix, learned Senior Counsel, relying upon the judgment of Karnataka High Court in Savitha Gupta v. Nagaratha 2003 (8) Ind LD 123 : (AIR 2003 Kant 420) contends that the defendant cannot be permitted to file the written statement. Construing the provisions of Order 8, Rule 1 of the Code of Civil Procedure, learned single Judge of the Karnataka High Court field that the defendant lose the right to file the written statement if he fails to file such written statement within the time limited by Order 8, Rule 1 and the Court has no power to extent such time even under Section 148 of the Code of Civil Procedure.
23. A bare reading of Rule 1 of Order 8 would show that the Legislature has limited the time to file written statement to thirty days from the date of service of the summons though such time can be extended by the Court, (or reasons to be recorded in writing but not beyond ninety days of the service of the summons. The said period cannot be extended further by the Court even under its inherent powers under Section 151 of the Code of Civil Procedure or under Section 148 of the Code which provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, (not exceeding thirty days in total) even though the period originally fixed or granted may have expired.
24. It is now well settled that Courts cannot, under its inherent powers under Section 151 of the Code of Civil Procedure, do something which is prohibited by the Code itself. The inherent jurisdiction of the Court is subject to the rule that if Code contains specific provisions which will meet the necessities of the case, then such provision should be followed and inherent jurisdiction cannot be invoked (See Nainsingh v. Koonwarjee ), The inescapable conclusion is that time to file the written statement cannot be extended by the Court beyond the period limited under Rule 1 of Order 8.
25. Having said this, 1 am of I he view that the provisions of Rule 1 of Order S are not. applicable to the suits filed on original side of this High Court and. therefore, the limitation for filing written statement provided under Rule 1 of Order 8 would not be applicable in the present, ease.
26. It is true that the Code of Civil Procedure providing procedure for Courts of civil jurisdiction would govern all proceedings of civil nature unless the Code of Civil Procedure othenwise provides. Section 4(1) of the Code clearly stipulates that the Code does not limit or otherwise affect any special or local law in force or any special jurisdiction or power conferred, or- any special form of procedure prescribed, by or under any other law for the time being in force.Section 4(1) reads :
4(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
27. Certain provisions, like. Sections 16, 17 and 20 are not applicable to the High Court in exercise of its Original Civil Jurisdiction as provided under Section 122 of the Code. This apart.Section 129 of the Code empower,--; the High Courts to make rules as to their original civil procedure. Section 129 reach:129. Power of High Courts to make rules as to their originaly civil procedure. Not-withstanding anything in this Code, any High court (not being the Court of a Judicial Commissioner) may make such rules not inconsistent with the Letters Patent, (or order) (or oilier law) establishing it, to regulate its own procedure in the exercise of Its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of,-.my such rules in force at the commencement of this Code.
28. A careful reading of Section 129 clearly indicates that notwithstanding any-limit; in the Code, the High Court can make such rules not inconsistent with the Letters Paten I or order or other law establishing it, to regulate its own procedure in exercise of its original civil jurisdiction. It. further provides that the validity of such rules which may be in force at the commencement of the Code, will not to affected by any provision of the Code.
29. Section 129 which starts with nun obstante clause dearly suggests that the High Court can make such rules which are not inconsistent with the Letters Patent or order or the law which established such High Court to regulate its own procedure in exercise of its original civil jurisdiction. The High Court of Himachal Pradesh was established under Section 21 of the State of Himachal Pradesh Act, 1970. Section 23 of the Act provides for the jurisdiction of the High Court It retails :
23.Jurisdiction of High Court. The High Court of Himachal Pradesh shall have in respect of any part of the territories comprised in the Stale of Himachal Pradesh all Such jurisdiction , powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High court of Delhi.
30. A reading of above provision shows that the. High Court of Himachal Pradesh has the same jurisdiction, power and authority which in respect of territories comprised in the State of Himachal Pradesh, was exercisable. in respect of that part of the territories by the. High Court of Himachal Pradesh before the appointed date, is;. January 25, 1971. Section 25 of the Act provides that subject, to the provisions of Part IV of the Act providing for the High Court of Himachal Pradesh, the law in force immediately before the appointed day. i.e. January 25, 1971 with respect to the practice and procedure in the High Court of Delia with necessary modification shrill apply in relation to the High Court of Himachal Pradesh. Section 28 of the Act provides that the law in force immediately before the appointed date, i.e. January 25, 1971 with respect to the powers of the Chief Justice, Singh Judges and division Courts of the High Court of Delhi and with respect, to the matter ancillary to the exercise of those powers shall. with the necessary modifications, apply in relation to the High Court of Himachal Pradesh. A combined reading of Sections 23 and28 suggest that, all the power, jurisdiction and authority which are exercisable by the High Court of Delhi in relation to the territories of Himachal Pradesh are exercisable by the High Court of Himachal Pradesh and its Judges.
31. Now the Delhi High Court was created by the Delhi High Court Act of 1986. Section 7 of the Act empowers the Delhi High Court, to make rules and orders with respect to the practice and procedure for the exercise of its original civil jurisdiction, Section 7 may be reproduced for convenience :
7. Practice and procedure in the High Court of Delhi. Subject to the provisions of this Act, the law in force immediately before the appointed day with respect to practice and procedure in the High Curt of Punjab shall with the necessary modifications, apply in relation to the High Court of' Delhi and accordingly the High Court of Delhi shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to its ordinary original civil jurisdiction. Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi if made by that High court.
32. A reading of the above provision shows that the High Court of Delhi and consequently the High Court of Himachal Pradesh has the power to make rules and orders with respect to the practice and procedure for the exercise of its ordinary original civil jurisdiction.
33. The High Court of Himachal Pradesh it exercise of the powers under Section 23 of the State of Himachal Pradesh Act, Section 129 of the Code of Civil Procedure and Article 225 of the Constitution of India and all other enabling powers made the rules for the proceedings taken on the Original Side of the High Court of Himachal Pradesh known as Rules and Orders of the High Court of Himachal Pradesh (Original Side), "Rules" for short. These rules were notified on July 18, 1997. Thus, the procedure for exercise of original civil jurisdiction in the High Court of Himachal Pradesh is to be governed by the 1997 Rules,
34. The Apex Court in Iridium India Telecom Ltd. v. Motorola Inc. 2005 AIR SCW 138, reading Section 129 of the Code of Civil Procedure held that Section 129 invest the powers hi the Chartered High Courts to make rules with regard to the regulation of their own procedure which may be inconsistent with the Code of Civil Procedure itself as long as such rules are consistent with the Letters Patent establishing the High Courts. The Apex Court particularly noticed thatsection 129 of the Code ends with the words, "nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code".
35. As noticed earlier, the High Court of Himachal Pradesh was established under the State of Himachal Pradesh Act,1970 which vested the High Court of Himachal Pradesh with the same powers, to make rules, as Delhi High Court, in regulating its own procedure on the original side.Section 7 of the Delhi High Court Act empowers the Delhi High Court to make rules and orders with respect to the practice and procedure for the exercise of its ordinary original civil jurisdiction. There is nothing inconsistent in the Original Side Rules with the provisions of the State of Himachal Pradesh Act which established the High Court of Himachal Pradesh. In this view of the matter, I am of the view that so far the procedure and practice on the Original Side of the High Court of Himachal Pradesh is concerned, it shall be governed by the Original Side Rules and not the provisions of the Code of Civil Procedure even if the provision of the Code of Civil Procedure is inconsistent with the rules. Their Lordships in Iridum India Telecom Ltd. (2005 AIR SCW 138) observed :
26. It appears to us that this was the real reason why a distinction was drawn between the proceedings in original jurisdiction before the Chartered High Court and those in other Courts. For historical reasons this distinction was maintained right from the time the Letters Patent was issued, and has not been disturbed by the Code of Civil Procedure, 1908, despite the amendments made in the CPC from 1976 to 2002.
36. An argument was raised in Iridum India Telecom Lid. (2005 AIR SCW 138) that merely because Section 129 of the Code of Civil Procedure begin with non obstacle clause, i.e. "Notwithstanding anything in this Code, would not mean that any High Court may make rules inconsistent with the Code. Their Lordships repelled the contention and held that expression 'notwithstanding" is in contradistinction to the phrase 'subject to' the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. Their Lordships observed in para 37 of the judgment.
37. Taking into account the extrinsic evidence, i.e., the historical circumstances in which the precursor of Section 129 was introduced into the 1882 Code by a specific amendment made in 1 895. we are of the view that the non obstacle clause used in Section 129 is not merely declaratory, but indicative of Parliaments intention to prevail the application of the CPC in respect, of civil proceedings on the Original Side of the High Courts.
37. It was also urged that Letters Patent and the rules made there under by the High Court for regulating its procedure on the Original Side are subordinate legislation and, therefore, must yield to the superior legislation, i.e. substantial provisions of the Code of Civil Procedure. This argument too was found untenable. Their Lordships observed :
46. Finally, it was argued by Mr. Jethmalani that the Letters Patent, and The rules made- there under by the High Court for regulating its procedure on the Original Side, were subordinate legislation and therefore, must give way to the superior legislation, namely, the substantive provisions of the Code of Civil Procedure. There are two difficulties in accepting this argument. In the first place. Section 2(18) of the CPC defines "rules" to mean "rules and forms contained in the First Schedule or made under Section 122 or Section 125", The conspicuous absence of reference to the rules regulating the procedure to be followed on the Original Side of a Chartered High Court makes it clear that those rules are not "rules" as defined in the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters, Patent and rules made there under, which are recognized and specifically protected by Section 129, are relegated to a subordinate status, as contended by the learned counsel....
38. Their Lordships in Iridium India Telecom Ltd. (2005 AIRSCW 138), held that interpretation put on Section 129 had been uniformly followed in several judgments of the High Courts and the principle of state decisis therefore squarely applies to the question involved. Their Lordships observed (para 40) :
Even assuming that if is possible to take a different view, as long as the principle has been consistently followed by the majority of the High Courts in this Country, as observed in Mishri Lal (supra), even if the High Courts consistently have taken an erroneous view, (though we do not see that the view is erroneous), it would be worthwhile to let the matter rest, since a large number of parties have modulated and continue to modulate their legal relationships based on the settled law.
39.1 am of the considered view that the proceedings on the Original Side of this Court shall be governed by the Original Side Rules, 1997 even if one or more rules are inconsistent with the provisions of the Code of Civil Procedure.
40. Now sub-rule (26) of Rule 3 of the Original Side Rules, 1997 defines the powers of the Registrar. Such rule empowers the Registrar to entertain and decide applications for extension of lime, by a party in default, to grant further lime to file written statement. Chapter VI governs the appearance by defendant and filing of written statement. Sub-rule (2) provides for appearance of the defendant either personally or by an advocate before or on the day fixed for his appearance in the writ summons. Sub-rule I (ii) of Rule 2 stipulates that where the summons is for appearance and for filing written statement, the defendant shall file the written statement on the date fixed for appearance. It further stipulates that written statement shall not be accepted unless a copy of the written statement has been served upon the plaintiff and written statement contains an endorsement of service signed by such party or his advocate. Rule 3 provides for extension for filing written statement. The rule reads :
3. Extension of time for filing written statement. Ordinarily not more than one extension of time shall be granted to the defendant for filing a written statement; provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit.
41. A reading of Rule 3 shows that ordinarily, not more than one extension of time can be granted to the defendant for filing the written statement. However, a second or further extension may be granted only if the defendant makes an application, in writing, giving sufficient, grounds for such extension and supported by an affidavit if so required. Rule 4 provides that: ii no written statement is filed by the defendant or defendants in a suit within the time allowed under Rules 2 and 3, or any time extended by order, the suit shall be set down for final disposal on the next or subsequent short cause day. It further provides if the defendant or one or more of several defendants, subsequently appear and show good cause for his or their default, he or they may be allowed to defend on payment to the plaintiff of such costs, if any, as may be awarded. The suit in that case may be transferred to long causes or may be postponed.
42. A combined reading of Rules 1, 2. 3 and 4 of Chapter VI of the Original Side Rules indicate that the defendant is to file written statement on or before the dale fixed for his appearance. However, the time can be extended for filing written statement on a written application of the defendants detailing sufficient grounds for such extension and such application should be supported by an affidavit. If the written statement is not filed by the defendant even during the extended time, the suit, is required to be set down for the final disposal before the Court. The defendant indeed has the right to show good cause for his default and on showing such good cause, the Court can allow the defendant to defend the suit subject to payment of cost.
43.In the present case, as noticed earlier, the Registrar in exercise of its power under Sub-rule (26) of Rule 3, Chapter-I granted six weeks further extension to file the written statement from March 3, 2004 but the defendant failed to file any written statement even during the extended period. The Registry, therefore, ought to have listed this case for final hearing as provided under Rule 4 of Chapter VII of the Original Side Rules, 1997. However, this was not done by the Registry.
44. To conclude, the plea of the plaintiff that the defendant has lost his right to file the written statement after ninety days of the service of the summons as provided under Rule 1 of Order 8 of the Code of Civil Procedure cannot be accepted. The applications of the plaintiff are rejected. The Registry shall take further steps in the case in view of the observations made above.
(P.M.P. No. 12 of2004 in C.S. No. 51 of 20031
45. The defendant-Company by this application prays for the rejection of the plaint of the plaintiff under Order 7, Rule 11 of the Code on the grounds.
(a) The plaint does not disclose any cause of action against the defendant;
(b)the summons which were served upon the defendant though accompanied by copy of the plaint but the enclosures and copies of the documents relied upon by the plaintiff were not supplied which amounts to abuse of the process of the Court and for this reason, the plaint is liable to be rejected;
(c) The plaint is liable to be rejected as the suit has been filed with an ulterior motive to cause harassment to the defendant.
46. Order 7, Rule 11 provides for the rejection of the plaint in cases where it does not disclose cause of action, relief claimed is under-valued and plaintiff on being required by the Court to correct the valuation within a time fixed by the Court fails to do so, the plaint is insufficiently stamped and plaint fails to make good the deficiency of court-fees within the time: fixed by the Court, if suit appears to be barred by any law from the reading of the plaint, plaint its not filed in duplicate and plaintiff fails to comply with the provisions of Rule 9. Order 7, Rule 11 reads :
O. 7, R. 11.Rejection of plaint. The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under -valued, and die plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper, within a time to be fixed by the Court, fails to do so;
(d) where the suit, appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9:
Provided that the time fixed by the Court for the correction of the valuation or sup plying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
47. A plaint indeed can be rejected if it does not disclose cause of action. II may, however, be noticed that question whether there was no cause of action for the plaintiff to sue the defendant is different from the plea that plaint doe not disclose any cause of action. The question whether the plaintiff has any cause of action or not is to be determined on the basis of evidence which may be produced by the parties at the appropriate stage in the suit. However, a plaint can be rejected if reading of it does not disclose any cause of action. For the limited purpose of determining whether the plaint should be rejected or not under Order 7, Rule 11 A, only the averment in the plaint are to be looked into and not. the defence which may be set up. It cannot be said from the reading of the plaint filed by the plaintiff that plaint does not disclose cause of action. Plaintiff has sued the defendant-Company for the recovery of Rupees 80,03,500.52 paise along with pendente lite and future interest on the ground that the plaintiff-firm is engaged in the business of fabrication of civil work and defendant-Company contracted with the plaintiff-firm to execute the fabrication of civil and construction work for the Company at its proposed resort at Shillon Bagh and the defendant-Company started fabrication work in July, 1998. The defendant-Company delayed the payments of the work of the plaintiffs in spite of submission of running bills from time to time. The plaintiff company maintained regular running account in this respect and addressed several communications to the defendant-Company. Defendant replied to those communications. The plaintiff-firm in para 4 of the plaint have detailed the bills which were given to the defendant-Company for payment. The payment was not: made in spite of reminders. In the meeting, the defendant-Company gave in writing that the bills of the plaintiffs would be examined in December, 2002 and it was so recorded in the minutes of the meeting held on September 21, 2002. On perusal of the plaint it cannot be said that the plaint does not disclose cause of action. The plea is without any foundation and liable to be rejected.
48. The next ground of attack is that the defendant were not supplied copies of the documents along with the plaint and, therefore, the plaint is liable to be rejected. There is nothing in Rule 11 of Order 7 to conclude that if the documents, on which the plaintiff rely, are not sent to the Defendant along with the copy of the plaint accompanying the summons, then the plaint is liable to be rejected. What Clauses (e) and (f) of Rule 11 says is that the plaint is liable to be rejected if It is not tiled in duplicate and if the plaintiff fails to comply with the provisions of Rule 9 of Order 7. It is not. the grievance of the defendant that plaint was not filed in duplicate. In fact, several copies of the plaint were filed and the defendant were served at three places. So far the question of complying with Rule 9 is concerned, under this rule, the plaintiff is to file as many copies of the plaint on plain papers as there are defendants within seven days from the dale on which the Court directs the service of the defendants. The case of the defendant does not fall under Rule 9 of Order 7 of the Code.
49. On merits too, the plea of the defendant is untenable. This Court on November 14, 2004 directed the plaintiff to deliver to the defendant or send to the defendant by registered post copy of the application for injunction together with :
(a) copy of the affidavit filed with the application;
(b) copy of the plaint; and
(c) copies of the documents on which the applicant relied.
50. The applicant was directed to file affidavit in compliance on November 15, 2003 stating that the copies of the aforesaid have been delivered or sent to the defendant.
51. The affidavit of compliance was filed on November15, 2003 by PremRaj Chauhan, Clerk to the learned Senior-Counsel for the plaintiff that the defendant-Company was sent by registered A.D. post a copy of the plaint, affidavit, stay application, affidavit and copies of all the documents under Receipt No. RPC 2077, dated15-11-2003. The postal receipt is affixed on this affidavit which shows that the defendants were sent the registered A.D. envelope at its Bhubaneshwar address, the parcel weighed 750 grams. In this view of the matter, it cannot be said that the defendants were not sent the documents on which the plaintiffs relied.
52. It is true that when the matter was taken up by the Registrar, under the original side rules of the High Court, learned counsel appearing for the defendant represented that he has not been supplied with the documents. Learned counsel appearing for the plaintiff maintained that such documents have been supplied and affidavit in compliance was filed. However, learned counsel for the plaintiff agreed that in spite of having sent the documents to the defendant-Company, he would again supply the documents on that date itself. It is noticed that when the matter was taken up on March 3, 2004 by the Registrar, no grievance was made by the defendant on that date or even on the subsequent date, i.e. April 3, 2004 that the copies of the documents have not been supplied to the defendant.
53. The application has no merit. Dismissed.