Sec.151 - Or. VII ,Rule 11 C.P.C - Allegation that the plaint not presented by proper authorised person and the authorisation is not correct - prayed for dismissal of suit - High court held that No petition is maintainable under sec.151 C.P.C. for dismissal of suit/rejection of plaint as it covers under Or.VII, Rule 11 C.P.C. and further held that No suit be dismissed for defective authorizations as it is a curable one =
The specific prayer made by the petitioner in the I.A., is to "dismiss the suit
as not maintainable". The C.P.C does not provide for such a course. In case
the defendant in a suit feels that the suit is not maintainable, he can
certainly file an application under Rule 11 of Order VII C.P.C., for rejection
of the plaint. If a case is made out, as provided for, under the clauses
thereof, the plaint can certainly be rejected. Filing of an application under
Section 151 C.P.C., with a prayer to dismiss the suit is totally impermissible.
When a specific provision deals with the rejection of plaint, general provision
like, Section 151 C.P.C., cannot be pressed into service.
Further, the ground relied upon by the petitioner for dismissal of the suit is
the alleged defect in the authorization. Assuming that there is any defect in
the authorization, it cannot entail in dismissal of the suit or rejection of the
plaint. The plaintiff can be given an opportunity to rectify the defect. In
the instant case, the trial Court has taken the view that there is valid
authorization through Ex.A-2. Viewed from any angle, the application filed by
the petitioner cannot be sustained.
The C.R.P. is accordingly dismissed. It is, however, made clear that in case
the petitioner has any other grounds that fit into Rule 11 of Order VII C.P.C.,
it shall be open to him to file an application.
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P. No.169 of 2013
24-01-2013
S.T. Ranganathan
M/s Margadarsi Chit Fund (Pvt.) Ltd., & others
Counsel for the Petitioner: Sri V. Shiv Shankar
Counsel for respondents :
<Gist:
>Head Note:
ORDER:
The 1st respondent filed O.S.No.194 of 2009 in the Court of
Additional Senior Civil Judge, Chittoor, against the petitioner (defendant No.4)
and respondents 2 to 6, for recovery of certain amount covered by a chit
transaction. The petitioner filed written-statement and the trial of the suit
is in progress. PW-1 was examined and Exs.A-1 to A-11 were marked. At that
stage, the petitioner filed I.A.No.313 of 2012 under Section 151 C.P.C., with a
prayer to dismiss the suit as not maintainable. The reason mentioned by him is
that the authorization said to have been given to one, Smt. Sailaja to file the
suit on behalf of the 1st respondent is not valid, and thereby the suit was not
validly instituted. The 1st respondent opposed the same by filing a counter.
The trial Court dismissed the I.A., through order dated 27-11-2012. Hence, this
revision.
Learned counsel for the petitioner submits that since the
1st respondent is a Company, the trial Court ought to have verified whether the
person, who instituted the suit, has valid authority.
He contends that since the objection raised by the petitioner goes to the root
of the matter, it ought to have been examined in detail by the trial Court.
The suit was instituted in the year 2009. Except the petitioner herein, rest of
the defendants in the suit were set ex parte. The evidence on behalf of the 1st
respondent appears to have been concluded and that the petitioner is not
forthcoming to adduce his evidence. Ex.A-2 is the authorization on the basis of
which, the suit
was instituted.
The specific prayer made by the petitioner in the I.A., is to "dismiss the suit
as not maintainable". The C.P.C does not provide for such a course. In case
the defendant in a suit feels that the suit is not maintainable, he can
certainly file an application under Rule 11 of Order VII C.P.C., for rejection
of the plaint. If a case is made out, as provided for, under the clauses
thereof, the plaint can certainly be rejected. Filing of an application under
Section 151 C.P.C., with a prayer to dismiss the suit is totally impermissible.
When a specific provision deals with the rejection of plaint, general provision
like, Section 151 C.P.C., cannot be pressed into service.
Further, the ground relied upon by the petitioner for dismissal of the suit is
the alleged defect in the authorization. Assuming that there is any defect in
the authorization, it cannot entail in dismissal of the suit or rejection of the
plaint. The plaintiff can be given an opportunity to rectify the defect. In
the instant case, the trial Court has taken the view that there is valid
authorization through Ex.A-2. Viewed from any angle, the application filed by
the petitioner cannot be sustained.
The C.R.P. is accordingly dismissed. It is, however, made clear that in case
the petitioner has any other grounds that fit into Rule 11 of Order VII C.P.C.,
it shall be open to him to file an application.
The miscellaneous petition filed in this C.R.P. shall also stand disposed of.
There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J.
Dt.24-01-2013.
The specific prayer made by the petitioner in the I.A., is to "dismiss the suit
as not maintainable". The C.P.C does not provide for such a course. In case
the defendant in a suit feels that the suit is not maintainable, he can
certainly file an application under Rule 11 of Order VII C.P.C., for rejection
of the plaint. If a case is made out, as provided for, under the clauses
thereof, the plaint can certainly be rejected. Filing of an application under
Section 151 C.P.C., with a prayer to dismiss the suit is totally impermissible.
When a specific provision deals with the rejection of plaint, general provision
like, Section 151 C.P.C., cannot be pressed into service.
Further, the ground relied upon by the petitioner for dismissal of the suit is
the alleged defect in the authorization. Assuming that there is any defect in
the authorization, it cannot entail in dismissal of the suit or rejection of the
plaint. The plaintiff can be given an opportunity to rectify the defect. In
the instant case, the trial Court has taken the view that there is valid
authorization through Ex.A-2. Viewed from any angle, the application filed by
the petitioner cannot be sustained.
The C.R.P. is accordingly dismissed. It is, however, made clear that in case
the petitioner has any other grounds that fit into Rule 11 of Order VII C.P.C.,
it shall be open to him to file an application.
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P. No.169 of 2013
24-01-2013
S.T. Ranganathan
M/s Margadarsi Chit Fund (Pvt.) Ltd., & others
Counsel for the Petitioner: Sri V. Shiv Shankar
Counsel for respondents :
<Gist:
>Head Note:
ORDER:
The 1st respondent filed O.S.No.194 of 2009 in the Court of
Additional Senior Civil Judge, Chittoor, against the petitioner (defendant No.4)
and respondents 2 to 6, for recovery of certain amount covered by a chit
transaction. The petitioner filed written-statement and the trial of the suit
is in progress. PW-1 was examined and Exs.A-1 to A-11 were marked. At that
stage, the petitioner filed I.A.No.313 of 2012 under Section 151 C.P.C., with a
prayer to dismiss the suit as not maintainable. The reason mentioned by him is
that the authorization said to have been given to one, Smt. Sailaja to file the
suit on behalf of the 1st respondent is not valid, and thereby the suit was not
validly instituted. The 1st respondent opposed the same by filing a counter.
The trial Court dismissed the I.A., through order dated 27-11-2012. Hence, this
revision.
Learned counsel for the petitioner submits that since the
1st respondent is a Company, the trial Court ought to have verified whether the
person, who instituted the suit, has valid authority.
He contends that since the objection raised by the petitioner goes to the root
of the matter, it ought to have been examined in detail by the trial Court.
The suit was instituted in the year 2009. Except the petitioner herein, rest of
the defendants in the suit were set ex parte. The evidence on behalf of the 1st
respondent appears to have been concluded and that the petitioner is not
forthcoming to adduce his evidence. Ex.A-2 is the authorization on the basis of
which, the suit
was instituted.
The specific prayer made by the petitioner in the I.A., is to "dismiss the suit
as not maintainable". The C.P.C does not provide for such a course. In case
the defendant in a suit feels that the suit is not maintainable, he can
certainly file an application under Rule 11 of Order VII C.P.C., for rejection
of the plaint. If a case is made out, as provided for, under the clauses
thereof, the plaint can certainly be rejected. Filing of an application under
Section 151 C.P.C., with a prayer to dismiss the suit is totally impermissible.
When a specific provision deals with the rejection of plaint, general provision
like, Section 151 C.P.C., cannot be pressed into service.
Further, the ground relied upon by the petitioner for dismissal of the suit is
the alleged defect in the authorization. Assuming that there is any defect in
the authorization, it cannot entail in dismissal of the suit or rejection of the
plaint. The plaintiff can be given an opportunity to rectify the defect. In
the instant case, the trial Court has taken the view that there is valid
authorization through Ex.A-2. Viewed from any angle, the application filed by
the petitioner cannot be sustained.
The C.R.P. is accordingly dismissed. It is, however, made clear that in case
the petitioner has any other grounds that fit into Rule 11 of Order VII C.P.C.,
it shall be open to him to file an application.
The miscellaneous petition filed in this C.R.P. shall also stand disposed of.
There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J.
Dt.24-01-2013.
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