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Civil Revision Case No. 122 of 1966, decided on 14th June 1966.
‑Plaint Rejection of plaint‑Suit found to be incompetent‑Duty of Court to reject plaint‑Principles‑involved in provisions of r. 11.
Although under Order VII, rule 11, of the Code of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases, does hear lawyers on the points involved in the application. The principles involved are two‑fold: In the first place, it contemplates that a still‑born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case. Order VII, rule11, of the Code, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as pot being permitted by law. A suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 .of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive.
It is a necessary incidence in the trial of judicial issues that a suit which is, on the face of it, incompetent, not because of any formal, technical or curable defect but because of an express or implied embargo imposed upon it by or under law, should not be allowed to further encumber legal proceedings. Order VII, rule 11, of the Code of Civil Procedure is obviously directed towards that end and is not exhaustive.
If, as a result of the provisions of law, the suit is barred, it would be barred under law, although, strictly speaking, it may not be specifically barred by law in express terms. The Court should, in such a case, reject the plaint under its inherent power.
Thakur Haribar Bakhsh Singh v. Thakur Jagannath Singh A I R 1924 Oudh 413; Radhakishen v. Wali Md. A I R 1956 Hyd. 133 and Mst. Deokali Koer v. Babu Kedar Nath 16 C W N 838 ref.
‑Declaratory suit-- Not permissible under law except in circumstances mentioned in S. 42‑Expression "legal character"‑Meaning.
A suit for mere declaration aliunde is not permissible under the law, except, in the circumstances mentioned in section 42 of the Specific Relief Act.
Thus, a mere declaration can be asked for breach of proprietary right or for declaration of "legal character". The expression "legal character" has been understood as synonymous with the expression "status". Section 42 of the Specific Relief Act does not permit an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure of parties. The right is strictly limited.
The expression "legal character" or "status" denotes a charater or status conferred by law on an individual or a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a "status" or "character" conferred by law. It is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the "status" with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority.
Holland on "Jurisprudence"; Shanta Shamsher v. Kamani Brothers A I R 1959 Born. 201; Mahabir Jute Mills v. Firm Kedar Nath A I R 1960 All. 254; Rama Krishna Pattar v. Narayana Pattar I L R 39 Mad. 80; and Bannerjee's Tagore Law Lectures, 1906: "The Law of Specific Relief in British India" ref.
A. M. Haidermota with Md. Mozammel Haque Khan for Petitioner.
Md. Behter Ali for the, Opposite‑Parties.
Dates of hearing: 7th and 14th June 1966.
.‑This revisional application arises out of the following circumstances.
Opposite‑Party No. 1, Burmah Eastern Employees' Union, instituted a suit in the Court of a Subordinate Judge at Dacca, in which they asked, inter‑alia, the following reliefs:
"Declaration that the prejudicial terms and conditions imposed upon the service of the members of the plaintiff Union by the defendant No. 1 as detailed in Annexure D to the plaint are illegal, invalid, void ab initio and ultra vires and as such not binding on the members of the plaintiff Union and that they are entitled to their former rights and privileges including basic pay, privilege leave and other benefits and emoluments as enjoyed by them while in the service of the defendant No. 2, the Burmah‑Shell."
In paragraphs 22 and.23 of the plaint there were also the following averments: ‑
"22. That this being a purely declaratory suit having no objective standard cannot be assessed at money value and as such the plaintiffs for the purpose of jurisdiction of the Court values the relief prayed for at Rs. 4,1.00.00 and pay fixed Court -fees of Rs. 20.00 thereon.
"23. That the plaintiff think it necessary that this suit should be decided in presence of the defendants Nos. 2 and 3, the original companies which by merger have given birth to the defendant No. 1, the Burmah Eastern Ltd. and as such make them pro forma defendants in this suit."
The learned Subordinate Judge, before whom the suit was pending, fixed the 23rd of August 1965, as the date for filing written statements, and, instead of filing such statement, defendant (petitioner before us) filed an application under Order VII, rule 11, of the Code of Civil Procedure, praying for rejection of the plaint. Rule 1 l of Order VII casts a duty upon the Court to reject the plaint under circumstances which have been enumerated therein and reads as follows‑‑
"11. The plaint shall be rejected in the following cases:‑
"(a) where it does not disclose a cause of action;
(b) where the relief claimed is under‑valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
The learned Subordinate Judge did not give any decision on the points raised by the defendant and rejected the application. He has, however, observed as follows:‑
"Accordingly the prayer of the defendant is left for considera tion after filing of the written statement by the defendant at an early date and in the meantime the plaintiff may take steps for making any amendment in the prayer portion of the plaint on valuation thereof if so advised."
Being aggrieved by the aforesaid order passed by the learned Subordinate Judge, defendant No. 1 moved this Court in its revisional jurisdiction and obtained the present rule nisi.
At the hearing of the rule the Court had the advantage of hearing full arguments from learned Advocates who appeared in this case. The application raises points of substance, and although there are decisions which I should think settle them, I would deal with them seriatim in as simple and plain a language as I can muster.
The first question that strikes one is that although under Order VII, rule 11, of the Code of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases, does hear lawyers on the points involved in the application. In fact, this is what has happened in the present case.
The principles involved are two‑fold: In the first place, it contemplates that a still‑born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case.
Order VII, rule 11, of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law.
A suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the 11ense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive. Hardly any authority is needed for such a proposition. I may, however, refer to some decisions on this point.
In the case of Thakur Haribar Bakhsh Singh v. Thakur Jagan nath Singh (A I R 1924 Oudh 413) where (at page 414) the Court proceeded to say:
"On behalf of the appellant it is contended that the only grounds on which .a Court is authorised to reject a plaint are those given in Order VII, rule 11 of the Code of Civil Procedure and that the Subordinate Judge had no jurisdiction to reject this plaint on the grounds taken by him. With this contention we are not disposed go agree. The instances given in the rule referred to cannot be regarded as exhaustive or as limiting the powers of a Court under section 151 of the same Code. We concur in the view taken by the Madras High Court in Lakshmanam Chelty v. Lahshmanam Chettiar 1 L W 875: 25 I C 738 that a Court has jurisdiction, in a proper case, to dismiss a suit filed by the next friend of a minor, on the ground that it is not in the interests of the minor that the suit should be allowed to go on. The cases quoted in that ruling from 'Simpson on the Law of Infants' (pp. 471 to 473) show that this is also the law in England."
In Radhakishen v. Wali Md. (A I R 1956 Hyd. 133) a number of cases have been discussed and the Court proceeded to observe thus (p. 134): ‑
"We do not altogether agree with the second contention of the learned Advocate that the plaint could not be rejected under Order VII, rule 11, C. P. C. No doubt Order VII, rule 11, gives instances of the rejection of the plaint in cases of non disclosure of causes of action, under valuation of the relief claimed, insufficiency of court‑fees or claim being barred by any law; the instances given, in our opinion, cannot be regarded as exhaustive of all the cases in which a Court can reject a plaint or as limiting the inherent powers of the Court in respect thereof."
In the case of Mst. Deokali Koer v. Babu Kedar Nath (16 C W N 838) which is a decision of a Division Bench of the Calcutta High Court, Sir Lawrence Hugh Jenkins, C. J., delivering the judgment of the said Bench, has observed (p. 841) as follows:‑
"If the Courts were astute‑as I think they should be‑to see that the plaints presented, conformed to the terms of section 42, the difficulties that are to be found in this class of cases, would no longer arise. Nor would Plaintiff's be unduly hampered if the provisions of section 42 were enforced, for it would be easy to frame a declaration in such terms as would comply with the provisions of the section where the claim was one within its policy."
It is a necessary incidence in the trial of judicial issues that a suit which is, on the face of it, incompetent, not because of any formal, technical or curable defect, but because of an express or implied embargo imposed upon it by or under law, should not be allowed to further encumber legal proceedings. Order VII, rule 11, of the Code of Civil Procedure is obviously directed towards that end and is not, in my opinion, exhaustive. .
Coming back to the fact of this case, I would like to say that, on a perusal of the plaint, there can be no doubt that the suit is incompetent. The plaint should be rejected out‑right even if it is held that the ground for its rejection is not fully covered by express language of Order VII, rule 11, of the Code of Civil Procedure. What useful purpose would be served by allowing the defendant to file a written statement and, thereafter, to dismiss the suit after raising a contested issue to the effect that the suit is incompetent, when the plaint itself discloses a suit which is not countenanced by law If the suit is prohibited and its in competency is evident from a mere reading of the plaint, it (plaint) should be rejected. Under clause (d) of rule I1 of Order VII the Court is required to reject a plaint where the, suit appears, from the statements in the plaint, to be barred by any law. In the present case although the suit may not be expressly barred by section 42 of the Specific Relief Act, the contention is that it is barred under law having regard to the requirement of the said section; namely, section 42 of the Specific Relief Act. If, as a result of the provisions of law, the suit is barred, it would be barred under law, although, strictly speaking, it may not be specifically barred by law in express terms. The Court should, in such a case, reject the plaint under its inherent power.
The next question is: Is the present suit barred under the law, if not, by law A suit for mere declaration aliunde is not permissible under the law; except, in the circumstances mentioned D in section 42 of the Specific Relief, Act, which run thus:‑
"42. Any person entitled to any legal character, or‑ to any right as to any property, may institute a suit against any person denying, or in interested to deny, his title to such character or right, and ‑the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
"Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
.‑A. trustee of property is a person interested to deny' a title adverse to the title of some one who is not in existence and, for whom if in existence, he would be a trustee,"
Thus, a mere declaration can be asked for breach of proprietory right or for declaration of "legal character".
The expression "legal character" has been understood as synonymous with the expression "status". Section 42 of the Specific Relief Act, as quoted above, does not permit an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure f parties. The right is strictly limited. This is patent. Plaintiff does not allege any infringement of al right to property. Is the plaintiff then seeking to establish a "legal character" within the meaning of section 42 Clearly not.
The term "legal character" is familiar to lawyers. It is, however, difficult to define precisely its connotation within a short compass. Attempts have, nonetheless, been made in this behalf, and I would suggest a workable definition in the following terms. The expression "legal character" or "status" ‑denotes a character or status conferred by law on an individual or a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a "status" or "character" conferred by law. It is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the "status'" with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law,. contract himself into minority.
Jurists have often illustrated the concept without attempting to define it. The popular work of Holland on "Jurisprudence", mentions the following categories: "1. sex; 2. minority; 3. 'patria potestas' and 'manus'; 4. coverture; 5. celebacy; 6. mental defect; 7. bodily defect ; 8. rank, caste, and official position; 9. race and colour; 10. slavery; 11. profession; 12. civil death; 13. illegitimacy; 14. heresy; 15. foreign nationality; 16. hostile nationality". A controversy has centred round the expression, "office", as stated above, but, I am not concerned with it.
In Shanta Shamsher v. Kamani Brothers (A I R 1959 Bom. 201) the law on this subject has been stated thus (p. 212):‑
"Now, amongst the said 16 varieties of legal status mentioned by Holland by way of illustration, the 8th variety is rank caste, and official position' and Mr. Bhatt contended that official position' would include managing directorship. Now, the said 16 varieties of status mentioned by Holland are to be understood in the light of the general principles formulated by Holland, otherwise some of the said varieties having been mentioned generally are liable to create misunderstanding. Fortunately, apart from the said general principles, Holland himself gives (page 355) illustrations of office' as used in the said 8th variety as follows:
(8) The king, according to the maxim of English law, can do no wrong. No action can be brought against him, nor indeed against a foreign sovereign, as such or his ambassador. Certain high officials are exempted from responsibility for the acts of their subordinates, and various public functionaries are relieved from liability by the Statutes of Limitation at an earlier date than other people.' The kind or the high officials mentioned in this illustration have a legal status, as they have a peculiarity of personality as in the case of a minor which exits independently of any particular right which they claim and which they can enforce against the person of incidence. It is in this sense that official position' or 'office' has been used in the said 8th variety and as seen earlier, managing directorship cannot fall within it. On the general test mentioned above, it is clear that when rights were claimed under a contract the same would not amount to 'legal character' under section 42 as held in some of the cases I have referred to above. Nor is the question whether the judgment in a particular case would amount to a judgment in rem a test of 'legal character' as argued by Mr. Munshi, because the division of legal rights into rights in rem and rights in personam is of no relevance in judging legal status or legal character. Indeed, section 43 of the Specific Relief Act itself states that the declaration under Chapter VI of that Act, i.e. under section 42, would be binding only on the parties to the suit and those claiming through them, which means that it is not a judgment in rem. Nor is the ownership of any property or the absence of it any criterion for judging legal character. It is the peculiarity of the personality of the person of inherence which is the determining factor of legal character and ownership of property or the absence of it is of no relevance."
In the case of Mahabir Jute Mills v. Firm Kedar Nath (A I R 1960 All. 254) it was observed as follows (p. 255):
"The question appears to have arisen first before the Madras High Court in Ramakrishna Pattar v. Narayana Pattar I L R 39 Mad. 80: A I R 1915 Mad. 584. A declaration had been claimed in that case that a personal contract subsisted between the plaintiff and the defendant. The contract related to some tax in a kuri. It was contended that a declaration about contractual rights could not be claimed or granted under section 42 of the Specific Relief Act, as such declarations could not be held to relate to any person's legal character. Accepting this argument it was observed:
"'We think that the contention must be upheld, to this extent, namely, that section 42 of the Specific Relief Act does not contemplate a suit like the present. We take it that man's legal character' is the same thing as a man's status. A man's status or legal character' is constituted by the attributes which the law attaches to him in his individual and personal capacity, the distinctive mark or dress, as it were, with which the law clothes him apart from the attributes which 'may be said to belong to normal humanity in general."'
The Court proceeded to observe:‑
"We think that a declaration that a valid personal contract still subsists between the plaintiff and the first defendant is not a right to declare a title to a legal character or a title to right to property.
In Tian Sahu v. Mulchand Sahu, A I R 1922 Pat. 432 the plaintiff had claimed a declaration that he would be entitled to contribution from the defendant if and when occasion arose and it was held that such a suit was not maintainable. A similar view was taken in Sripat Rao v. Shankar Rao, A I R 1930 Bom. 331. . . . . .
. . . . . . . . . . .
More recently in Madanlal v. State of Madhya Bharat A I R 1955 Madh. B. 111 a declaration had been claimed that according to the contract between the parties the plaintiff was not personally responsible for payment of any amount due on account of the sale and distribution of foodgrains and it was held that as the declaration did not relate to any legal character or right to property it could not be claimed under section 42 of the Specific Relief Act."
In the case of Ramakrishna Pattar v. Narayana Pattar (I L R 39 Mad. 80) a Division Bench of Madras High Court observed thus (p. 82): ----
"We take it that a man's legal character' is the same thing as a man's status. 'A man's status or legal character' is constituted by the attributes which the law attaches to him in his individual and personal capacity, the distinctive mark or dress, as it were, with which the law clothes him apart from the attributes which may be said to belong to normal humanity in general."
In the case of Shanta Shamsker v. Kamani Brothers. The Court observed thus (p. 211):‑
"Legal status of a subject may therefore arise in relation to Private Law or in relation to Public law. A person's franchise or right to vote or right to a public office would constitute his Status in relation to Public law and it was such status which was the subject‑matter of the said case of A I R 1946 Lah. 85 and was held to be legal character' within the meaning of section 42 of the Specific Relief Act.
"As seen earlier, status arises by reason of some peculiarity of the person of inherence or the person of incidence. The person may be a natural person, i.e. a human being or an artificial person, i.e. a juristic person, like a company or what is known in English Law as a Corporation Sole. The personality of an artificial person is different from that of a normal natural person and it constitutes his status in law."
In Bannerjee's Tagore Law Lectures, 1906: "The LAW of Specific Relief in British India", the learned Author has observed thus at page 617: ‑
"A man's status or legal character' is constituted by the attributes which the law attaches to him in his individual and personal capacity, the distinctive mark or dress, as it were, with which the law clothes him. There are some attributes, which may be said to belong to humanity in general, so long as it does not deviate from the normal type. But individuals may have characteristics peculiar to them, and these peculiar characteristics, will constitute the status of each. An adopted son, for instance, is not quite the same as a natural‑born son, and with neither can be placed on an even footing a natural or illegitimate son. The rights of a son again may differ from these of a daughter, and the married woman in the eye of the law may be a different person from a widow or even a divorcee. The legal character and position of each may be differentiated."
Turning, now, to the plaint in the present suit, it is obvious, from a mere perusal of the plaint itself, that it must be held that the suit is prohibited under, if not, by law. This being the position, even if the case does not come, literally and strictly, within the letter of Order VII, rule 11 of the Code of Civil Procedure, there cannot be any manner of doubt that the suit is prohibited under the law in the sense that it is barred under legal provisions. The Court below should, therefore, have rejected the plaint in limine because the suit itself is barred under our legal system. If Order VII, rule 11, of the Code of Civil Procedure cannot be prayed in aid, the inherent power of the Court should be invoked.
The result, therefore, is that the rule is made absolute and the impugned order passed by the Subordinate Judge; Third Court, Dacca, on the 18th of December 1965, in Title Suit No. 114 of 1965, is set aside. It is directed that the records of this case be sent down expeditiously to the Court below. The trial Court is directed to reject the plaint, or, in the alternative, if it is so disposed, it may permit the plaintiff to withdraw the plaint, if such a course is considered to be fit and proper. There will be no order as to costs of this Rule.
.‑I agree.
S. Q.
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