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SHAMPA SARKAR
Supriya Basu – Appellant
Versus
Monika Sengupta – Respondent
JUDGMENT :
Shampa Sarkar, J. - The revisional application arises out of an order dated October 31, 2022, passed by the learned Civil Judge (Senior Division), 4th Court, Alipore, in Title Suit No. 227 of 2018. By the order impugned, the learned court below rejected an application under Order 7, Rule 11 of the Code of Civil Procedure. The defendant nos. 3 and 4 prayed for rejection of the plaint on the ground that the said defendants were practicing advocates, who were advising the parties with regard to the procedure for sale of the property in question. They did not have any other interest in the transaction, but acted in their professional capacity, with bona fide intention.
2. According to the said defendants, the ADVOCATES ACT , 1961 was a complete bar for continuation of the suit before the learned court below against the learned advocates who were engaged by the parties. Reference has been made to section 35, 44 and 48 of the ADVOCATES ACT , 1961 in this regard. Further grounds pleaded for rejection of the plaint was non-service of notice upon the Kolkata Municipal Corporation prior to institution of the suit although the Mayor was a defendant, misjoinder of causes of action, ba
The proviso of Order 7, Rule 11 evidently covers the cases falling within the ambit of clauses (b) and (c) and has no application to a rejection of a plaint under Order 7 Rule 11(d).
The court held that a plaint can only be rejected under Order VII Rule 11 if it does not disclose a cause of action, and the issue of limitation is a mixed question of law and fact.
Rejection of plaint – Plaintiffs cannot be permitted to bring suits within period of limitation by clever drafting, which otherwise is barred by limitation.
The court established that a plaint can be rejected under Order VII, Rule 11 if it is barred by limitation, regardless of the merits of the case.
The plaint must disclose a cause of action, and the permissibility of oral averments contradicting a written document depends on the applicability of relevant provisions of the Evidence Act.
Point of law: principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisd....
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