An Impressions of Return and Rejection of Plaint in a Litigation
1.1 Introduction
In plaint, plaintiff should allege facts about his cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be present in plaint. It is a first duty of court, before which a suit is instituted to properly examine the plaint, for the purpose of determining, whether it should be returned, or rejected and in order to determine, the question of rejection it is the responsibility the court to take consideration other materials too, Order VII, Rule 11 of CPC narrate cases where plaint should be rejected. According to section 26 of the Code of the Civil Procedure, 1908 every suit shall be instituted by the presentation of a plaint. pla int. Once the plaint is ready, it is to be filed in the court which has both territorial, pecuniary and others jurisdiction. According to section section 15 15 of the CPC a suit trial by a civil court must be instituted in the court of the lowest grade competent to try it. A litigant must read and verify that the plaint clearly shows the cause of action of the suit and must be cautious that the suit is not barred by limitation, otherwise, a plaint may be rejected. Requisite Court fees should be attached with the Plaint. Court fees can be either fixed or based on ad-valorem basis. Once a plaint is ready, it will be filed with the concerned court having jurisdiction. Learned advocate should prepare a bundle for court which includes plaint, vokalotnama (power given to Lawyer by client), list of documents upon which the claimant(s) rely on, process fee, notice of summon, copies of the plaint as required depending on the number of defendants.
1.2 The statutory law of Bangladesh about Plaint
Section 26 of the Code of Civil Procedure, 1908 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order IV, Rule 1 lays down the procedure for institution of suit; but does not speak of any ‘other manner’ for the purpose. The amendment makes it clear that unless the plaint is filed in duplicate it will be deemed to be incomplete. Sub-rule (3) has been inserted in order to curtail unnecessary adjournments for due compliance of the provisions of sub-rules (1) ( 1) and (2) (2) after the filing of the plaint. Rules 1 to 8 of Order VII relate to particulars in a plaint. Rule 9 lays down procedure on plaint being admitted. Whereas Rule 10 provides 10 provides for return of plaint, Rules 11 to 13 deal 13 deal with rejection of plaint. Rules 14 to 14 to 18 contain 18 contain provisions relating to production of documents.1
1
The Code of Civil Procedure, 1908, Sec. 26, 2 6, Order IV, Order VII
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An Impressions of Return and Rejection of Plaint in a Litigation 1.3 Meaning and defination of Plaint
The expression ‘plaint’ has not been defined in the CPC or any statutory law of Bangladesh. A plaint or otherwise known in Bengali as an “Arji” is a document where the facts and grounds of claim are stated clearly and concisely. However, it can be said to be a statement of claim, a document, by presentation of which the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff. It is a pleading of the plaintiff.2 Black's Law Dictionary provides that “A private memorial tendered in open court to the
judge, where the party injured sets forth his cause of action.3 Particularly one for setting aside a testament alleged to be invalid. This word is the English equivalent of the Latin “que- rela,” Radheshyam Radheshyam Agrawal vs Hariom Trading Co. And Ors. On 12 August, 1991, Indeed, "Plaint" has has not been statutorily defined. But it should contain
necessary and relevant facts constituting the cause of action. The counterclaim need not necessarily be confined to the claim made against the plaintiff, and if for its effective eff ective adjudication besides the plaintiff the plaintiff other interested persons should be made parties, they should be impleaded, if the court is satisfied that without them the adjudication will be incomplete. So according to my analysis A Plaint is written statement of plaintiff s claim. Through plaint, ’ ’
plaintiff describes his cause of action and other necessary necessary particulars to seek remedy from court for redressed of his grievances. grievances .
1.4 Particulars of the Plaint Every plaint should should contain the following following particular:
The name of the court in which the suit is brought;
The name, description and place of residence of the plaintiff and defendant;
Where the plaintiff or defendant is a minor or a person of un sound mind, a statement to that effect;
The facts constituting the cause of action and when i t arose;
The facts showing that the court has jurisdiction;
A statement of the value of the subject- matter of the suit for the purpose of jurisdiction and court-fees;
2 3
The relief claimed by the plaintiff, simply or in the alternative;
C. K. Takwani, Civil Procedure , 5th ed., (Lucknow: Eastern Book Company, 2006). P. 157. Black's Law Dictionary
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An Impressions of Return and Rejection of Plaint in a Litigation
Where the plaintiff files a suit in a representative capacity, the facts showing showing that the plaintiff has an actual existing interest in the subject matter and that he has taken steps that may be necessary to enable him to file fil e such a suit;
Where the suit is for recovery of money, the precise amount claimed;
Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished;
Where the suit is for accounts accounts or menses or for movables movables in the possession of the defendant or for debts which cannot be determined, the approximate amount or value thereof;
Where the subject-matter of the suit is immovable property a description of the property sufficient to identify it, e.g. boundaries, boundaries, survey numbers, etc;
Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed;4
1.5 Presentation of the Plaint
Commencement of the Suit: Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of Order IV goes as: i.
Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf. 5
ii.
Every plaint shall comply with the rules contained in Order VI and VII, so far as they are applicable.
iii.
The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2). Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
Generally, the presentation of a plaint must be on a working day and during the office hours. However, there is no rule that such presentation presentat ion must be made either at a particular pa rticular place or at a particular time.6
5
The Code of Civil Procedure, 1908, Order VII, Rule 1. J. Venkatramana Reddy vs Kanakagari Kanakagari Bhakthavatsalaiah ... on 2 September, September, 2002
6
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An Impressions of Return and Rejection of Plaint in a Litigation A judge, therefore, may accept a plaint at his residence or at any other place even after office hours, though he is not bound to accept it . J. Venkatramana Reddy vs Kanakagari 2002 . Bhakthavatsalaiah Bhakthavatsalaiah , 2002 . But if not too convenient, the judge must accept the plaint, if it is the last day of limitation. Thereafter, the particulars of a suit will be entered by the court in a book kept for the said purpose, called the Register of Civil Suits. After the presentation, the plant will be scrutinized by the Stamp Reporter. 7 If there are defects, the plaintiff or his advocate will remove them. Thereafter the suit will be numbered. M/S Anita International vs Tungabadra Sugar Works Maz.Sangh ... on 4 July, 2016.
1.6 Return of a plaint
The plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. 8 This is done to ensure the jurisdiction of the court. On returning a plaint the judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reason for returning it. Narendar Singh And Ors. vs The Indian Institute Of ... on 28 November, November, 2013 2013
Where at any state of the suit, the court finds that it has no jurisdiction, either territorial or pecuniary or with regard to the subject-matter of the suit, it will return the plaint to be presented to the proper court in which the suit ought to have been filed. Lutfor Rahman Mollah (Md.) and another another Vs. M Safiul-Alam, 2015, 44 CLC (HCD) (HCD)
Rule 10(a) 10(a) prescribe prescribe the procedure to be followed by a court before the plaint is ordered to be returned to be presented to the proper court. It is inserted to obviate the necessity of serving the summons on the defendants where the return of plaint is made after the appearance of the defendants in the suit. An appellate court can also return the plaint to be presented to the proper court. The judge returning the plaint should make endorsements on it regarding
7 8
a.
the date of presentation;
b.
the date of return;
c.
the name of the party presenting it;
d.
Reasons for returning it.
M/S Anita International vs Tungabadra Sugar Works Maz.Sangh ... on 4 July, 2016 A. A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007), p. 307.
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An Impressions of Return and Rejection of Plaint in a Litigation When the plaint is filed the proper court, after getting it back from the wrong court, it cannot be said to be continuation of the suit.9 As suit must be deemed to commence when a plaint is filed in the proper court. Vimal CoOp. Housing Society Ltd. vs Rajendrakumar Shankerbhai Shankerbhai ... on 5 March, 2003
The order returning the plaint is appealable. The conversion of the suit from one file to another does not involve a change in the nature and character of the suit so as to bar amendment of the plaint. The court had ample jurisdiction to allow the amendment and then to return the amended plaint to the plaintiff for presentation to the proper court.
10
Return of a plaint in a matter relating to person in the service of the republic
Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil court having been vested on the Administrative Tribunal by the promulgation of special statute the jurisdiction of the civil court in respect of bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil court for presentation to the proper Tribunal having jurisdiction. 11 Modi Entertainment Entertainment Network & Anr vs W.S.G.Cricket W.S.G.Cricket Pte. Ltd on 21 January, 2003 2003
Suit under Admiralty jurisdiction when not maintainable
Since the plaintiff is neither the owner nor consignee nor assignee of any bill of lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiff insurer has
no locus standi
to invoke the jurisdiction of the Admiralty
Court under section 6 of the Admiralty Court Act. In The High Court o f Judicature At ... vs Unknown on 19 December, 2013, the plaint is returned to the plaintiff with liberty to file it in
appropriate court if not otherwise barred. 12
9
. Vimal Co-Op. Housing Society Ltd. vs Rajendrakumar Shankerbhai ... on 5 March, 2003 Nazrul Islam and another v. Jahanara Jahanara Hassan and other. 46 DLR (1994), 106. 11 Mansur Ali v. Janata Bank. 43 DLR (1991), 394. 12 Sadharan Bima Corporation v. Bangladesh Shipping Corporation. 43 DLR (1991), 548. 10
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An Impressions of Return and Rejection of Plaint in a Litigation 1.7 Rejection of a plaint
The plant will be rejected in the following grounds:
Where plaint does not disclose cause action:
If the plaint filed by the plaintiff does not disclose any clause of action, the court will reject it. The power to reject a plaint on this ground should be exercised only if the court comes to the conclusion that even if all the allegations set out in the plaint are proved, the plaintiff would not be entitled to any relief. In that case, the court will reject the plaint without issuing summons to the defendants . M/S. Pawan Proproties vs Prohlad Rai Dhanania @ Agarwal on 23 February, 2015 .
The reading of the plaint should be meaningful and not formal. But where the plaint does not disclose cause of action, clever drafting, ritual of repeating words or creation of an illusion cannot insert a cause of action in plaint.13 Khan Mohammad Ameer Vs. Atiqur Rahman and others, 2014, 43 CLC (HCD)
It is rightly conceded that the High Court could not have acted under Order 7, Rule 11 (a) ( a) of the Code. Where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII, Rule 11 (a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint. plaint.14
Where relief claimed is undervalued:
Where the relief claimed by the plaintiff is undervalued and the valuation is not corrected within the time fixed or extended by the court, the plant will rejected. In considering the question whether the suit is properly valued or not, the court must confine its attention to the plaint only and should not look at the other circumstances which may subsequently influence the judgment of the court as to the true value of the relief prayed for. 15 Church Of Christ Charitable Trust ... vs M/S. Ponniamman Educationa Trust ... on 3 July, 2012
13
A. A. M Moniruzzaman, pp. 309-310. Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755. 15 Ibid. 14
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An Impressions of Return and Rejection of Plaint in a Litigation
Where plaint is insufficiently stamped: stamped:
Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon a paper insufficiently stamped and the plaintiff fails to pay the requisite court-fees within the time fixed or extended by the court. 16 In the case, the plaint will be rejected. Abul (Md.) Kashem & others Vs. Ashrafuzzaman, 1990, 19 CLC (HCD)
Where suit is barred by law: law :
Where the suit appears from the statements in the plaint to be barred by any law, the court will reject the plaint. For instance, where in a suit against the government, the plaint does not state that a ‘notice’ as required required by section 80 of the CPC has been given; the plaint will be rejected under this clause. But where waiver of such notice is pleaded, the court cannot reject the plaint without giving the plaintiff an opportunity to establish that fact. Sharmila Shetty & Anr vs Hemendra Hemendra Barooah Barooah Benevolent Benevolent And ... on 9 September, September, 2014 2014 .
The plaint has to be field in duplicate. If the said requirement is not complied with the plaint will be rejected.17 Where the plaintiff fails to comply with the provisions of rule 9, plaint will be rejected. Sadharan Bima Corporation, Sadharan Bima Bhaban, 33, Dilkusha Commercial Area, Dhaka Dhaka and another Vs. Vs. Messrs Ahad Ahad Jute Mills Ltd. and others, 2016, 45 CLC (HCD )
Other grounds including appeal: appeal :
The grounds for rejection of plaint specified in rule 11 of order VII are not exhaustive. On other relevant grounds also a plaint can be rejected. Thus, if the plaint is signed by a person not authorised by the plaintiff and the defect is not cured within the time granted by the court, the plaint can be rejected . V.K.John vs W.S.Seetharam on 18 December, 2008 . Where a plaint is rejected by a court, the judge will pass an order to that effect and will record reasons for such rejection. If the plaint is rejected on any of the above grounds, the plaintiff is not thereby precluded from presenting pr esenting a fresh plaint in respect of the same cause of action. An order rejecting a plaint is a deemed “decree” decree” within the meaning of section 2(2) of the code, and, therefore, appealable.
16
Abul (Md.) Kashem & others Vs. Ashrafuzzaman, 1990, 19 CLC (HCD) Sadharan Bima Corporation, Sadharan Bima Bhaban , 33, Dilkusha Commercial Area, Dhaka and another Vs. Messrs Ahad Jute Mills Ltd. and others, 2016, 45 CLC (HCD)
17
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An Impressions of Return and Rejection of Plaint in a Litigation In Abul Hasnat v Ershad Ali Begum (42 DLR, 42 DLR, 244) it was held that while rejecfing a plaint the court has to consider not the written statement of the defendant but only the plaint of the plaintiff.It was further held in Chairman, BISE v Motijheel Model High 46 DLR, Model High School (46 DLR, 485) that the power of rejection of a plaint shall be exercised only if the court comes to the conclusion on mere reading of the plaint that even if all the allegations are proved the proved the plaintiff would not be entitled to any relief whatsoever.
Difference between return and rejection of plaint 1.
2.
3. 4. 5.
A plaint is returned where the court does not have jurisdiction to hear the case. On the other hand, a plaint is rejected on the grounds mentioned in Order VII. R.11 CPC, which are plaint does not disclose a cause of action or it is undervalued or insufficiently stamped or barred by any law for the time being in force. Where the court does not have jurisdiction it will straightaway return the plaint to the plaintiff for its presentation before the proper court without providing any time. But where the court feels that plaint is liable to be rejected as it is undervalued or insufficiently stamped, court is required to provide a time to the plaintiff to make up deficiency and it is only on the failure of plaintiff to do the needful will reject the plaint. The order of return of plaint does not amount to decree, but rejection of plaint amounts to decree. Order of return of plaint is appealable, but no second appeal lies from it. A second appeal may lies against an order of rejection of plaint. Return of plaint is provided in order VII. R. 10 CPC, whereas grounds grounds for rejection of plaint are provided in Order 7. R. 11 CPC.
1.8 Remedies against rejection of Plaint
There are two types of remedies against the order of rejection of a plaint: i.
Rule 13 , Order VII. VII. Specifies that the rejection of the plaint on any of the grounds shall not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Thus the plaintiff has right to file a fresh suit on the same cause of action. Major General Abdus Salam (Retd) Vs. Bangladesh Election Commission and another, 2015, 44 CLC (AD)
ii.
Order rejecting a plaint is a decree within the meaning of section2 (2) and hence an appeal lies against such order order under under section 96 of 96 of the CPC. Smt. Amarjit Kaur & Ors. vs Smt. Satnam Kaur & Ors. on 19 December, 2008
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An Impressions of Return and Rejection of Plaint in a Litigation iii.
In Radha Rani Sadhu v Durga Rani Adhikari 47 DLP. DLP. ( HCD) 360 the High Court
Division held that an order rejecting a plaint is a decree and as such appeal lies against such order. However, in case of rejection of plain. plain .
1.9 Object and Effect on suit for Plaint:
Chapter 6 Chapter 6 Conclusion
6.1 Importance of a Plaint
Plaint plays important role throughout whole trial of any civil suit. It is admitted principle that no plaintiff can go beyond his plaint. Therefore, no plaintiff can demand what is not claimed in his plaint. Similarly no plaintiff can produce any evidence, which is beyond his plaint. plaint.
6.2 Conclusion
In framing a suit unwanted hazards should be avoided. Lengthy civil suit is a lengthy process in a mans life the same is a wastage of energy and time. Lengthy civil suit engulfs the lifetime of a party. Competency of a court in disposing a civil suit is of mare importance than anything else. Legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honorable members. Although the entry to the profession can be professional has to be maintained by its members. member s. Every Civil suit must be duly stamped, and must be signed with due verification. Success of a party lies, in filing civil suit with due care. Improper plaint gives birth to, improper results and the same affects the life and property of a party, care should be taken over filing a civil suit, in matters of court fees, jurisdiction and specification of the suit land .Lawyers must be careful in discharging their duties and in discharging the duties bestowed upon them. It should be taken case of that a man should not be tried in his absence; by keeping him ignorant over the fact and actual matters. Hence in a civil suit the summons must contain a direction whether the date fixed is for settlement of issues only or for final disposal of the suit. In the latter case, the defendant should be directed to produce his witnesses. The court must give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed. The summons should also contain an order to the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely on in support of his case. A 9|Page
An Impressions of Return and Rejection of Plaint in a Litigation party in litigation must remember that good plaint gives birth to a good decree. As such to achieve a good decree plaint must be duly filed. Otherwise the same may deprived the party from enjoying the fruits of a civil suit.
Book reference: 1. C.K. Takwani: Civil Procedure with Limitation Act , 1963, Ed. 7th; 2. Mahmud Wazedd: Hand book book on code of civil procedure; of Civil Procedure, ed.2nd , Volume 2 (or 21r. 60 to end) 3. Mahbudul Islam: Law of
4. Md. Abdul Halim: Text Book on Civil Procedure 5. A. M Moniruzzaman, Civil Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007 6. Mulla's Civil Procedure Code, Code, 13th Edn., Vol. 1, p. 755. 7. The Code of Civil Procedure, 1908 8. Md. Abul Kalam Azad, The Code of Civil Procedure, 3rd ed ., ., (Dhaka: Lipi Law Book House, 2008)
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