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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Tajunissa - Appellant
Versus
Vishal Sharma - Respondent
I.A. 7168 of 2019 in CS(OS) 262 of 2019
Decided On : 23-07-2021
(Video-Conferencing)
1. Mr. Ravi Gputa, learned Senior Counsel for the Defendant No.3 submitted, at the outset of these proceedings, that this suit was liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) and that, therefore, summons were not required to be issued.
2. Mr. Anupam Lal Das, learned Senior Counsel for the plaintiff advances two submissions, reacting to the submission of Mr. Gupta. His first submission is that Mr. Gupta does not have any right of audience at this stage, as the defendant, under the CPC, cannot be heard unless summons are issued to the defendant or the defendant has filed a caveat. As Mr. Das's submission was that this position flows from a reading of the CPC, the Court queried, to Mr. Das, regarding the provisions of the CPC on which he sought to place reliance to support the submission that the Court could not grant an audience to Mr. Ravi Gupta at this stage. Mr. Das cites, in his support, Sections 26 , 27, 148A and Order V Rule 1 of the CPC. These provisions, for ready reference, may be reproduced thus:
"26. Institution of suits. --
(1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.
Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of Rule 15A.
27. Summons to defendants. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed on such day not beyond thirty days from date of the institution of the suit.
148A. Right to lodge a caveat.--
(1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court , any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.
ORDER V - Issue and service of summons
Issue of Summons
1. Summons
(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim:
Provided further 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 other 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.
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such oth
A suit may be rejected under Order VII Rule 11 without issuing summons, allowing defendants a right of audience to challenge maintainability even before summons are issued.
It is open to a Court to examine, even before issuing summons, whether suit is required to be returned under Order VII Rule 10 or rejected for any of grounds contained in Order VII Rule 11 of CPC.
The main legal point established is that a suit can be rejected under Order VII Rule 11 even before issuing summons, and the defendant has the right to be heard on the objection to the maintainabilit....
The strict and mandatory nature of the timelines for filing a written statement in commercial suits, as per the provisions of the Commercial Courts Act, 2015 and the amended provisions of the Code of....
Written statement – Failure to file written statement within stipulated period or even extended period cannot to be detrimental to interest of defendant – Procedures are handmaid of justice and provi....
The right to make an application for witness summons is available to a party at any stage of the suit, but the trial court may refuse to issue summons only if the application is not bona fide, vexati....
The appearance of an Advocate and filing of a Vakalatnama by him could not dispense with the requirement of service of summons. The time to file written statement commences only after service of the ....
The court emphasized that procedural rules should not lead to dismissal of a suit when the defendant has knowledge of the proceedings, allowing for restoration of the suit.
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