DEVNARAYAN RAMSUMAR TEWARI Vs. STATE OF BOMBAY NOW GUJARAT

JUDGEMENT

(1.) A plaint was rejected by the trial Court and in appeal that order was reversed by the appellate Court which directed the trial Court to proceed with the suit. It is against this order that this appeal has been filed.

(2.) The plaint was rejected by the trial Court after issues had been framed by it. So the order is clearly wrong. Under Order 14 Rule 1 C. P. Code issues are framed at the first hearing of the suit; in other words after the suit has been admitted under Order 7 Rule 9 C. P. Code. When a suit has been admitted under Order 7 Rule 9 C. P. Code it cannot be rejected under Order 7 Rule 11 C. P. Code. On this ground alone the appellate Court was right in setting aside the order of the rejection of the plaint.

(3.) The learned counsel for the appellant however relies on Kishore Singh v. Sabdal Singh I. L. R. 12 Allahabad 553 and contends that a plaint can be rejected at any stage of a suit. The learned Judges of the Allahabad High Court were dealing with the case where a plaint in a pre-emption suit had after the issues had been framed been rejected on the ground that in the plaint the plaintiff had not shown any cause of action. A second suit for pre-emption was filed and the first Court dismissed the suit on the single ground that it was barred under sec. 13 Civil Procedure Code because of what had taken place in the previous pre-emption suit between the parties. In appeal it was held that there was no bar and the case was remanded and there was an appeal to the High Court from that order. The High Court held that the order of remand was properly made. The learned Judges of the Allahabad High Court were dealing with the sections as they stood in the old Civil Procedure Code. Sec. 53 of the old Code dealt with the case of rejection of a plaint at or before the first hearing on the grounds mentioned in that section. Section 54 of the old Act dealt with rejection of the plaint on the grounds mentioned in that section. But it contained no limitation as to the stage at which the order could be passed. On this ground it was held that there was no limitation as to time under sec. 54 which generally corresponds but not exactly to Order 7 Rule 11 of the present Civil Pro. Code. A decision based on the peculiar wording of secs. 53 and 54 of the old Code cannot be applied as such to the present Civil Procedure Code where the wording is different. Order 7 Rule 10 C. P. Code reads as under :