CIVIL

Examination of the Plaint before admission of it under CPC

On the presentation or receipt of a plaint, the Court should examine it with special reference to the following points viz:

(i) whether the plaint contains the particulars specified in Order VII, Rule 1, and conforms to the other rules of pleadings in Orders VI and VII and rules made by the High Court thereunder;

(ii) whether there is prima facie, any non-joinder or mis-joinder of parties, or mis-joinder of causes of action;

(iii) whether any of the parties to the suit are minors and, if so, whether they are properly represented;

(iv) whether the plaint is duly signed and verified;

(v) whether the suit is within the jurisdiction of the Court or must be returned for presentation to proper Court (Order VII, Rule 10);

(vi) whether the plaint is liable to be rejected for any of the reasons given in Order VII, Rule 11;

(vii) whether the documents attached to the plaint (if any) are accompanied by lists in the prescribed form and are in order;

(viii) whether the plaintiff has filed a proceeding containing his address for service during the litigation as required by Rule 19 of Order VII ;

(ix) in money suits, whether the plaintiff has stated the precise amount he claims;

(x) whether the plaintiff has stated in his plaint regarding the documents on which he relates his claim and are not in his possession and a statement in whose possession or power they are;

(xi) whether the plaintiff has filed the address of the party in the prescribed form.

(Xii) Whether the required court fees has been paid

(Xiii) Local jurisdiction  and pecuniary Jurisdiction of the filing Court

Registration of suits—When a plaint is presented a suit is thereby instituted under Order IV, Rule 1, of the Code and the suit must forthwith be entered in the Register of Civil Suits (Civil Register No. 1) in accordance with Order IV, Rule 2.

Procedure when plaintiff is not present on the preliminary date—It is customary, when a plaint is presented, to fix a short preliminary date in order to permit the examination of the plaint. On this preliminary date the plaintiff is expected to appear to receive notice of the date fixed for the hearing of the suit. It sometimes happens that the plaintiff does not appear on this date and several cases have come to the notice of the Judges in which Courts have forthwith dismissed the suit in default by orders purporting to be made under Order IX.

This procedure is incorrect as it has been held that the preliminary date is not a date fixed for hearing and therefore, the provisions of Order IX do not apply. The correct procedure in such cases may be deduced from the Code and has been referred to in several rulings of the High Court. It is as follows:

(i) If the plaint is in order and process fee for the summoning of the defendant has been filed with the plaint, the Court should issue summons to the defendant and a notice to the plaintiff to appear on the date for which the defendant is summoned. If one that date the plaintiff does not appear in spite of the service of the notice on him, the suit can be dismissed under Order IX, Rule 3 or Rule 8 of the Code whichever is applicable.

(ii) If the plaint is in order but process fee has not been filed with it, the Court should fix a date for the appearance of the defendant and issue notice to the plaintiff calling upon him to appear on that date to deposit process fee by a specified date so that the defendant may be summoned. If on the date fixed it is found that no summons has issued owing to non-payment of process, fees, or that the summons could not be served owing to late payment of process fees, the suit can be dismissed under Order IX, Rule 2. If process fee has been paid as directed, the other provisions of Order IX, will apply.

(iii) If the plaint is not in order and the defects are such as to entail its rejection under Order VII, Rule 11, the Court should record an order rejecting it. If it is to be rejected for failure to pay Court-fees, it will be necessary first to issue a notice calling on the plaintiff to make up the deficiency unless he has already been given time to do so in such cases the final order to be entered in Civil Register No. 1 is plaint rejected‘.

If the defects in the plaint are not such as to call for its rejection under Order VII, Rule 11, the Court should proceed in accordance with the procedure outlined in sub-clauses (i) and (ii) above the question of remedying the defects being taken up at the first hearing.


Categories: CIVIL

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