In the light of the afore-stated legal position,
let us examine the averments made in the plaint
so as to find out whether the plaint discloses
the cause of action, and whether the suit is
barred under any law as contemplated in Clause
(a) and Clause (d) respectively of Rule 11 of
Order VII. At this juncture, it would be also
apposite to mention that Order VI Rule 2 requires
that every pleadings shall contain, and contain
only a statement in concise form and of material
facts on which the party pleading relies for his
claim or defence as the case may be, but not the
evidence by which they are to be proved. Thus,
though the pleadings must contain a statement in
concise form of material facts, it need not
contain the evidence by which they are to be
proved. At this juncture, it would be also
relevant to mention that Order VII Rule 1 states
as to what particulars should be contained in the
plaint, and as per Clause (e) of the said Rule,
the plaint must contain the facts constituting
the cause of action, and when it arose. As per
Clause (f) thereof, the plaint also must contain
the facts showing that the Court has
jurisdiction. The distinction between “material
facts” and “particulars” has been succinctly
described by the Supreme Court in case of Sopan
Sukhdeo Sable and Ors. Vs. Assistant Charity
Commissioner and Ors. (supra). Paragraph 20
thereof reads as under:-
“20. There is distinction between ’material
facts’ and ’particulars’. The words ’material
facts’ show that the facts necessary to formulate
a complete cause of action must be stated.
Omission of a single material fact leads to an
incomplete cause of action and the statement or
plaint becomes bad. The distinction which has
been made between ’material facts’ and
’particulars’ was brought by Scott, L.J. in Bruce
v. Odhams Press Ltd. (1936) 1 KB 697 in the
following passage :
The cardinal provision in Rule 4 is that the
statement of claim must state the material
facts. The word "material" means necessary
for the purpose of formulating a complete
cause of action; and if any one "material"
statement is omitted, the statement of claim
is bad; it is "demurrable" in the old
phraseology, and in the new is liable to be
"struck out" under R.S.C. Order XXV, Rule 4
(see Philipps v. Philipps ((1878) 4 QBD
127)); or "a further and better statement of
claim" may be ordered under Rule 7.
The function of "particulars" under Rule 6
is quite different. They are not to be used
in order to fill material gaps in a
demurrable statement of claim gaps which
ought to have been filled by appropriate
statements of the various material facts
which together constitute the plaintiff’s
cause of action. The use of particulars is
intended to meet a further and quite
separate requirement of pleading, imposed in
fairness and justice to the defendant. Their
function is to fill in the picture of the
plaintiff’s cause of action with information
sufficiently detailed to put the defendant
on his guard as to the case he had to meet
and to enable him to prepare for trial.
The dictum of Scott, L.J. in Bruce case (supra)
has been quoted with approval by this Court in
Samant N. Balkrishna v. George Fernandez (1969
(3) SCC 238), and the distinction between
"material facts" and "particulars" was brought
out in the following terms:
The word ’material’ shows that the facts
necessary to formulate a complete cause of
action must be stated. Omission of a single
material fact leads to an incomplete cause
of action and the statement of claim becomes
bad. The function of particulars is to
present as full a picture of the cause of
action with such further information in
detail as to make the opposite party
understand the case he will have to meet.
Rule 11 of Order VII lays down an independent
remedy made available to the defendant to
challenge the maintainability of the suit itself,
irrespective of his right to contest the same on
merits. The law ostensibly does not contemplate
at any stage when the objections can be raised,
and also does not say in express terms about the
filing of a written statement. Instead, the word
’shall’ is used clearly implying thereby that it
casts a duty on the Court to perform its
obligations in rejecting the plaint when the same
is hit by any of the infirmities provided in the
four clauses of Rule 11, even without
intervention of the defendant. In any event,
rejection of the plaint under Rule 11 does not
preclude the plaintiffs from presenting a fresh
plaint in terms of Rule 13.”
11.From the afore-stated provisions contained in
Order VI Rule 2 and Order VII Rule 1 it clearly
emerges that the pleadings i.e. the plaint in the
instant case, must state the material facts
constituting the cause of action and as to when
it arose, and omission of a single material fact
leads to an incomplete cause of action, and the
plaint becomes bad. Such infirmity may attract
Clause (d) of Rule 11 of Order VII. The word
“shall” used in Order VII Rule 11 also cast duty
on the Court to reject the plaint when it is hit
by any of the clauses mentioned in Rule 11.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 10 of 2015
H D F C BANK LIMITED.VASHAPURA MINECHEM LIMITED..
CORAM: MS.JUSTICE BELA M. TRIVEDI
Date : 13/10/2017
let us examine the averments made in the plaint
so as to find out whether the plaint discloses
the cause of action, and whether the suit is
barred under any law as contemplated in Clause
(a) and Clause (d) respectively of Rule 11 of
Order VII. At this juncture, it would be also
apposite to mention that Order VI Rule 2 requires
that every pleadings shall contain, and contain
only a statement in concise form and of material
facts on which the party pleading relies for his
claim or defence as the case may be, but not the
evidence by which they are to be proved. Thus,
though the pleadings must contain a statement in
concise form of material facts, it need not
contain the evidence by which they are to be
proved. At this juncture, it would be also
relevant to mention that Order VII Rule 1 states
as to what particulars should be contained in the
plaint, and as per Clause (e) of the said Rule,
the plaint must contain the facts constituting
the cause of action, and when it arose. As per
Clause (f) thereof, the plaint also must contain
the facts showing that the Court has
jurisdiction. The distinction between “material
facts” and “particulars” has been succinctly
described by the Supreme Court in case of Sopan
Sukhdeo Sable and Ors. Vs. Assistant Charity
Commissioner and Ors. (supra). Paragraph 20
thereof reads as under:-
“20. There is distinction between ’material
facts’ and ’particulars’. The words ’material
facts’ show that the facts necessary to formulate
a complete cause of action must be stated.
Omission of a single material fact leads to an
incomplete cause of action and the statement or
plaint becomes bad. The distinction which has
been made between ’material facts’ and
’particulars’ was brought by Scott, L.J. in Bruce
v. Odhams Press Ltd. (1936) 1 KB 697 in the
following passage :
The cardinal provision in Rule 4 is that the
statement of claim must state the material
facts. The word "material" means necessary
for the purpose of formulating a complete
cause of action; and if any one "material"
statement is omitted, the statement of claim
is bad; it is "demurrable" in the old
phraseology, and in the new is liable to be
"struck out" under R.S.C. Order XXV, Rule 4
(see Philipps v. Philipps ((1878) 4 QBD
127)); or "a further and better statement of
claim" may be ordered under Rule 7.
The function of "particulars" under Rule 6
is quite different. They are not to be used
in order to fill material gaps in a
demurrable statement of claim gaps which
ought to have been filled by appropriate
statements of the various material facts
which together constitute the plaintiff’s
cause of action. The use of particulars is
intended to meet a further and quite
separate requirement of pleading, imposed in
fairness and justice to the defendant. Their
function is to fill in the picture of the
plaintiff’s cause of action with information
sufficiently detailed to put the defendant
on his guard as to the case he had to meet
and to enable him to prepare for trial.
The dictum of Scott, L.J. in Bruce case (supra)
has been quoted with approval by this Court in
Samant N. Balkrishna v. George Fernandez (1969
(3) SCC 238), and the distinction between
"material facts" and "particulars" was brought
out in the following terms:
The word ’material’ shows that the facts
necessary to formulate a complete cause of
action must be stated. Omission of a single
material fact leads to an incomplete cause
of action and the statement of claim becomes
bad. The function of particulars is to
present as full a picture of the cause of
action with such further information in
detail as to make the opposite party
understand the case he will have to meet.
Rule 11 of Order VII lays down an independent
remedy made available to the defendant to
challenge the maintainability of the suit itself,
irrespective of his right to contest the same on
merits. The law ostensibly does not contemplate
at any stage when the objections can be raised,
and also does not say in express terms about the
filing of a written statement. Instead, the word
’shall’ is used clearly implying thereby that it
casts a duty on the Court to perform its
obligations in rejecting the plaint when the same
is hit by any of the infirmities provided in the
four clauses of Rule 11, even without
intervention of the defendant. In any event,
rejection of the plaint under Rule 11 does not
preclude the plaintiffs from presenting a fresh
plaint in terms of Rule 13.”
11.From the afore-stated provisions contained in
Order VI Rule 2 and Order VII Rule 1 it clearly
emerges that the pleadings i.e. the plaint in the
instant case, must state the material facts
constituting the cause of action and as to when
it arose, and omission of a single material fact
leads to an incomplete cause of action, and the
plaint becomes bad. Such infirmity may attract
Clause (d) of Rule 11 of Order VII. The word
“shall” used in Order VII Rule 11 also cast duty
on the Court to reject the plaint when it is hit
by any of the clauses mentioned in Rule 11.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 10 of 2015
H D F C BANK LIMITED.VASHAPURA MINECHEM LIMITED..
CORAM: MS.JUSTICE BELA M. TRIVEDI
Date : 13/10/2017
Read full judgment here: Click here
No comments:
Post a Comment