Decided on March 29,1995


Cited Judgements :-



B.M.Mitra, J. - (1.)THE present Revisional application is directed against an order passed by the learned District Judge at Port Blair dated 12th October, 1994 in Misc. Appeal No.1 of 1994 reversing the Judgment and Order No.11 dated 13th April, 1994 passed by the learned Senior Sub-Judge at Port Blair in O.S. No. 6 of 1994. THE connected suit is for declaration, injunction, recovery of general average claim damages and compensation valued at U.S. $ 25,30,413.00 equivalent to Rs. 7,64,18,472.60p. (RUPEES SEVEN CRORES SIXTY FOUR LAKHS EIGHTEEN THOUSAND FOUR HUNDRED SEVENTY TWO AND PAISE SIXTY ONLY). THE said suit was filed on 7.3.1994 along with a petition for injunction and by an order dated 7.3.1994 the Trial Court passed an ad-interim order directing the defendant to remove cargo from the vessel M.V. Arti after furnishing sufficient Bank guarantee/security bond with security for the full amount within fifteen days from the date of service of the notice. Pursuant to the said order of ad-interim injunction the defendant appeared on 18.3.1994 and one K. Harish claiming himself to be constituted Attorney of the defendant had filed four petitions as follows :
(1) Petition under order 14 Rule 2 of the Code of Civil Procedure praying for disposal of the suit in limine for want of jurisdiction. (2) Petition under Section 151 praying for discharging the ad-interim order or alternatively or stay of proceeding. (3) Petition under Section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961. (4) Petition Under section 34 of the Arbitration Act read with Section 151 of C.P.C.

(2.)THE learned Trial Judge by a reasoned order dismissed all the above noted four petitions by a composite order. Being aggrieved by the same, an appeal was taken out before the Court of the learned District Judge at Port Blair in Misc. appeal No. 1/1994.
This Revisional Court will first deal with the portion of the order namely the petition under order 14 Rule 2 of the C.P.C. It is significant to mention at the very outset that order 14 Rule 2 has suffered a significant amendment by 1976 amendment of the C.P.C and now it has been specifically laid down that the Court may try an issue of law first only when it will relate to the jurisdiction of the Court or the same will be in the context of a bar to the suit created by any law for the time in force. In the Trial Court's order a cryptic reference was made about an affidavit affirmed by one K. Harish before the Trial Court sometime in the month of March, 1994 and the same has been attempted to be described as written statement in substance and/or in disguise. The nomenclature used by the trial court apparently appears to be an ingenuous expression, because the same has been contemplated in specific terms under order 8 Rule 1 of the C.P.C. In order to understand the connotation of order 8 Rule 1 that reference may be made to order 6 Rule 1 defining the meaning of the word 'pleading'. Order 6 Rule 3 envisages forms of pleading and they are to be read in Consonance with order 48 Rule 3 of the C.P.C.

(3.)MR. DR. Parekh, learned Advocate appearing on behalf of the petitioner has tried to draw a line of distinction between the concept of formats of pleading and substance of pleading. According to the contention of MR. Parekh, the substance of pleading is required to be looked into in terms of order 6 Rule 2 of the C.P.C. Apart from the question of compliance with the forms of pleadings, Civil Rules and orders contemplate the stages when written statement will be required to be filed. Normally, a date is required to be fixed for the purpose of filing written statement and it should be in terms of the form as contained in appendix -'A' being supported by a proper verification. Pleadings are required to be supported by verification and verification is a compulsory part of a pleading otherwise it does not derive sanction. Unless a written statement is not in form then on the ground of mere technicality it may became defective. The question of appreciation of a pleading front the point of view of substance will only arise when formalities in presentation of written statement are complied with and order 6 Rule 2 of the C.P.C. will come into play only after filing of the written statement by the defendant in accordance with forum being support by a proper verification. As such this court cannot accept the suggestion of the affidavit of K. Harish to be treated as written statement nor can it be rated under the cover of an ingenuous nomenclature, namely, disguised written statement as per purported reference to be attributed by the Trial Court. It is significant to mention though this Court does not appreciate the reasoning offered by the Courts below but it apparently appears that unless issues are framed in terms of Order 14 Rule 1 of C.P.C after filing and reception of the pleadings of the respective parties, the question of entertainment of a petition under Order 14 Rule 2 does not and cannot arise. The circumscribed formula of order 14 Rule 2 will apply only when issues are discernible, but not otherwise. Accordingly, the said petition under order 14 Rule 2 of C.P.C. filed by the defendant at the initial stage cannot be entertained as the same is a pre-mature one and on that score it is liable to be rejected.

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