The provisions of Order 7 Rule 11 of the Code are not applicable where the rejection of the plaint is sought in part that is against one or more of the defendants or one or more of the properties or claims.

JUDGMENT

C V Bhadang, J. - By this civil revision application under section 115 of the Code of civil procedure (CPC for short) the petitioner,original defendant No. 2(a) is seeking rejection of the plaint in Civil Suit No. 16 of 1992.

2. The brief facts necessary for the disposal of the application may be stated thus:

That the first respondent M/s Gammon India Ltd (plaintiff) has filed the aforesaid suit against M/s I.K.Marine Charterers (defendant No. 1) and others, for recovery of money and mandatory injunction.

3. The case made out in the plaint is that the plaintiff is a company engaged in the business of civil constructions including construction of dams and bridges etc. The original defendant nos 1 and 3 are respectively the charterers and owners of a vessel viz I. K. Malika which is operated in the inland waters Goa. The defendant No. 4, M/s New India Assurance Co. Ltd., is the insurer of the vessel under a comprehensive policy effective from 1.9.1988 to 31.8.1989. The defendant No. 5 was the Captain of the said barge on 11.2.1989.

4. The plaintiff was engaged by the PWD for the work of Recommissioning and rehabilitation of the Collapsed Mandovi Bridge (Nehru Bridge). The plaintiff commenced the said work in July 1987. For the said purpose the plaintiff had erected a staging truss with the permission of the Captain of Ports between Pier Nos 7 and 8. On account of this and the construction of a new bridge nearby, the Captain of Ports, had issued a notice on 3.1.1989 diverting the movement of all vessels under the Mandovi Bridge strictly between Pier nos 8 and 9 only, with immediate effect, copy of which, was sent to the Barge Owners Association. As a result of this hundreds of vessels started navigating between Pier nos 8 and 9.

5. It is the material case that on 11.2.1989 at about 4.30 am while the work of the said truss was in progress, under full electric illumination, the defendant No. 5 (captain of the vessel) and the driver of the vessel I. K. Malika navigated the said fully loaded vessel in a rash and negligent manner and flouting the notice dated 3.1.1989 from the captain of ports and dashed against the said truss causing damage to the truss and the machinery mounted on the same,which was thrown in the sea. In the accident one of the labourers working on the site succumbed to the injuries sustained. The matter was reported to the police. According to the plaintiff it suffered damage on account of the loss of the truss part of which is still lying in the riverbed and the damage to the machinery. It is contended that the captain of ports is asking the plaintiff to remove the truss from the river bed or to bear the expenses thereof as the same is obstructing the free navigation in the river. It may it is in these circumstances that the plaintiff filed the suit seeking damages and other reliefs.

6. The defendant No. 2A filed an application(Ex D-188) under Order 7 Rule 11 (a) and (d) of the Code for rejection of the plaint, inter alia on the following grounds:

(a) The plaint does not comply with Order 29, Rule 1 Civil Procedure Code.

(b) The plaint has been filed without any Resolution of the Plaintiff Company.

(c) The claim does not disclose cause of action as the Defendant No. 4 has already paid against the claim of total loss of the truss raised by the Plaintiff and the Plaintiff has collected Rs.14,24,123/- and therefore, the cause of action ceased on 18.01.1990.

(d) The claim is barred by proviso to Section 110 and 110A (3) Motor Vehicles Act, 1939 ("M. V. Act" for short) as modified by Section 54C of the Inland Vessels Act, 1917 ("1917 Act" for short).

(e) The claim does not disclose a cause of action against the Defendant No. 2 as admittedly in terms of the paragraphs 2 and thereafter paragraph 21 is a Charterer. The Defendant No. 2 is neither the Master, Driver, Owner nor the Insurer.

(f) The suit is barred by law of limitation inasmuch as in terms of Section 110A sub-section (3) of the Inland Vessels Act, 1917