Of Its Own Force: What the Rejection of a Plaint Settles and the Return of One Does Not

Order VII gives a civil Court two ways to part with a plaint without trying the suit. It can return it, under Order VII Rule 10, to be presented to the Court in which the suit should have been instituted. Or it can reject it, under Order VII Rule 11, on one of six grounds. In both cases the plaint goes back to the party who filed it, and in both cases nothing has been decided about whether he is right.

From the counter the two look alike. In the Code they are opposites, and almost nothing that follows from one follows from the other. Which of them has happened determines whether there is a decree, what appeal lies, how long the suit survives, whether the same cause of action can be filed again, and whether the plaintiff still has his place in the queue.

The Code says all of this. What it does not do is require anybody to tell the plaintiff which disposition is being considered before it is made — with one exception, in one situation, which is examined below.

The two dispositions

Rule 10(1) provides that, "Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted." An Explanation added to the sub-rule declares, for the removal of doubts, that "a Court of appeal or revision may direct after setting aside the decree passed in a suit, the return of the plaint under this sub-rule."

Rule 10(2), side-headed "Procedure on returning plaint", provides that "On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."

Rule 11 provides that "The plaint shall be rejected in the following cases", and lists six:

• "(a) where it does not disclose a cause of action";
• "(b) where the relief claimed is undervalued, 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 returned 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";
• "(e) where it is not filed in duplicate";
• "(f) where the plaintiff fails to comply with the provisions of rule 9".

A proviso follows, confined to two of the six: the time fixed for correcting the valuation or supplying the stamp-paper "shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature" from doing so in time, "and that refusal to extend such time would cause grave injustice to the plaintiff."

Rule 12 provides that "Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order."

Rule 13 is the provision on which most of what follows depends. Side-headed "Where rejection of plaint does not preclude presentation of fresh plaint", it provides that "The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."

One is a decree and the other is an order

Section 2(2) defines a decree as "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit". It then adds, "It shall be deemed to include the rejection of a plaint".

The same definition excludes, by clause (a), "any adjudication from which an appeal lies as an appeal from an order".

Order XLIII Rule 1 lists the orders from which an appeal lies under Section 104, and its first clause is "an order under rule 10 of Order VII returning a plaint to be presented to the proper Court", with an exception noted below. Section 104(1)(i) is the provision that permits the rules to do this: an appeal lies from "any order made under rules from which an appeal is expressly allowed by rules".

So the two dispositions are separated in the definition itself, and in opposite directions. One clause of Section 2(2) pulls the rejection of a plaint into the category of decrees although it determines nothing. Another clause pushes out whatever the rules have already made appealable as an order, which is what Order XLIII Rule 1(a) has done to the return of a plaint. The result is that the same event — a plaint handed back — is a decree or an order according to the rule the Judge applied.

What follows from the classification is not symmetrical.

From a decree, Section 96(1) gives an appeal: "an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court." From the decree passed in that appeal, Section 100(1) gives a further appeal to the High Court "if the High Court is satisfied that the case involves a substantial question of law".

From an order under Section 104, there is one appeal and no more. Section 104(2) provides that "No appeal shall lie from any order passed in appeal under this section."

A plaintiff whose plaint is rejected therefore has, in principle, two tiers above the Court that rejected it. A plaintiff whose plaint is returned has one. The difference does not arise from anything about the seriousness of the two defects. It arises from the deeming clause in Section 2(2).

The decree that does not decide

Having made the rejection of a plaint a decree, the Code then withdraws from it the consequence a decree ordinarily carries.

Section 11 bars the trial of a suit or issue in which the matter directly and substantially in issue "has been directly and substantially in issue in a former suit between the same parties", and "has been heard and finally decided by such Court". Rule 13 keeps the rejection of a plaint clear of that bar: the rejection "shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."

Read with Section 2(2), the position is that the rejection of a plaint is the formal expression of an adjudication which conclusively determines the rights of the parties, and also an event after which the plaintiff may present a fresh plaint on the same cause of action. Both propositions are in the Code, and the deeming language is what holds them together: the rejection is not an adjudication, it is deemed to be one. What the deeming carries with it, on the text, is the appeal. Rule 13 withholds the rest.

Rule 13 is not confined to the clerical grounds. It applies to "any of the grounds hereinbefore mentioned". A plaint rejected under clause (a) for not disclosing a cause of action may be followed by a fresh plaint on the same cause of action. So may a plaint rejected under clause (d) because the suit appeared from the statement in the plaint to be barred by any law.

That is where the words "of its own force" do their work.

Where the liberty is empty

Rule 13 does not say that a fresh plaint will succeed. It says that the rejection will not, by itself, stop it being presented. The distinction decides how much the rule is worth, and the answer differs across the six grounds.

For clauses (e) and (f) the liberty is complete. A plaint rejected because it was not filed in duplicate, or because the plaintiff did not present the copies required by Rule 9 after being directed to, can be filed again with the copies. Nothing in the first rejection touches the second plaint.

For clauses (b) and (c) the liberty is nearly as complete. A plaint rejected for an uncorrected valuation or unsupplied stamp-paper can be presented afresh, valued and stamped.

For clause (a) the liberty is real but narrower. Whether a fresh plaint survives depends on whether the first plaint failed to disclose a cause of action because of how it was drafted or because there was none to disclose. Rule 13 permits the second attempt in either case; only the first case has anything to gain from it.

For clause (d) the liberty is close to nothing. The ground of rejection is that the suit "appears from the statement in the plaint to be barred by any law". If the bar was real, it is a bar on the suit, not on the plaint, and a fresh plaint in respect of the same cause of action meets the same bar on presentation. Rule 13 does not pretend otherwise. It says the rejection does not preclude the fresh plaint of its own force — and in a clause (d) case, the rejection is not what precludes it. The law that barred the suit does that, and it is untouched either way.

So Rule 13 is a provision about what a rejection does not add, not a provision that restores anything. Its practical reach is widest exactly where the defect was least substantial, and narrowest where the defect went to whether the suit could be brought at all.

Three grounds that require an opportunity, and three that do not

The six grounds of Rule 11 are not uniform in what must happen before they can be used.

Clauses (b) and (c) are not drafted as defects at all. Each describes a sequence: the relief is undervalued, or the paper insufficiently stamped; the Court requires the plaintiff to correct it within a time the Court fixes; the plaintiff fails to do so. The rejection is for the failure, not for the valuation. On the text, neither clause is available until the Court has required correction and fixed a time, and the plaintiff has let it pass.

Clause (f) is of the same shape, by reference. Rule 9 requires the plaintiff, where the Court has ordered summons to be served, to present as many copies of the plaint on plain paper as there are defendants "within seven days from the date of such order along with requisite fee for service of summons on the defendants". The seven days run from an order, so there is a step before the default.

Clauses (a), (d) and (e) require nothing before them. They describe states of the plaint as presented: it does not disclose a cause of action; the suit appears from the statement in the plaint to be barred by any law; it is not filed in duplicate.

The proviso follows the same division and narrows it further. It restricts the extension of time, and it restricts it in respect of two clauses only — the correction of the valuation and the supply of stamp-paper. For those two, an extension requires reasons recorded, a cause "of an exceptional nature" that prevented compliance, and a finding that refusal "would cause grave injustice to the plaintiff". The Code is therefore more guarded about extending the time it has already given than about rejecting a plaint under a clause where it gave none.

Clause (c) sits against a separate provision of the body of the Code. Section 149 provides that where any court-fee "has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part" of it, and that "upon such payment the document, in respect of which fee is payable, shall have the same force and effect as if such fee had been paid in the first instance." That is a discretion exercisable at any stage, in the body of the Code, over the same subject on which Rule 11(c) requires rejection and the proviso restricts indulgence. The Code contains both and does not, in either place, say how they are to be read together.

The appeal the plaintiff gives up to keep his date

The return of a plaint is appealable, but not in every case, and the exception is of the plaintiff's own making.

Rule 10A applies where the Court is of opinion that the plaint should be returned and the defendant has already appeared. In that situation, and only in that situation, the Court "shall, before doing so, intimate its decision to the plaintiff." This is the one place in the sequence where the Code requires the plaintiff to be told what is coming.

On that intimation, the plaintiff "may make an application" specifying the Court in which he proposes to present the plaint, praying that a date be fixed for the appearance of the parties in that Court, and requesting notice of the date. If he applies, the Court must, before returning the plaint and "notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit", fix the date and give notice of it to both sides. The notice then does the work of a summons: under Rule 10A(4) it is unnecessary for the Court in which the plaint is presented after its return to serve the defendant with a summons, unless that Court for recorded reasons directs otherwise, and the notice "shall be deemed to be a summons for the appearance of the defendant".

Rule 10A(5) states the price. "Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint." Order XLIII Rule 1(a) carries the same exception on its face: the appeal from an order returning a plaint lies "except where the procedure specified in rule 10A of Order VII has been followed".

So the plaintiff facing a return after the defendant has appeared is given a choice, and he has to make it before the order is passed. He can take the date, keep the parties before a Court without fresh service, and accept the return as final. Or he can keep his appeal, and begin again in the Court he is sent to, with service to be effected afresh if the return stands.

Rule 10B addresses the plaintiff who took the second course and lost. Where the appellate Court confirms the order of return, it may, if the plaintiff applies, direct him to file the plaint "subject to the provisions of the Limitation Act, 1963 (36 of 1963)" in the Court in which the suit should have been instituted, and fix a date for appearance there — with the same consequence for service. Sub-rule (2) adds that the direction is "without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit." The appellate Court can restore the convenience the plaintiff declined. It cannot restore the time.

What the record carries

The two dispositions also leave different traces.

On a return, Rule 10(2) requires the endorsement to be made on the plaint itself: the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons. The document then moves to another Court carrying its own history on its face — when it was first presented, by whom, and why it was sent away.

On a rejection, Rule 12 requires the Judge to "record an order to that effect with the reasons for such order". The order stays where it was made. The plaint does not travel, and the fresh plaint that Rule 13 permits is a new document which shows nothing of what preceded it.

The difference matters least on the day it happens and most afterwards. A returned plaint proves, by an endorsement the Code requires, the date on which it was first presented. A rejected plaint leaves that fact in the record of a proceeding that has ended, in a Court the fresh plaint may not be filed in.

What is settled before the plaint is presented

Four of the six grounds in Rule 11 are curable at the counter, and three of them cannot be reached at all until the Court has first required something and the plaintiff has failed to do it. Valuation, stamp-paper, duplicate filing and the Rule 9 copies are all matters of compliance, and the Code gives the plaintiff an opportunity, a time, and in two cases a restricted power of extension.

The other two are decided when the plaint is drafted. Whether it discloses a cause of action, and whether the suit appears from the statement in the plaint to be barred by any law, are both questions about the contents of the document as presented. Clause (d) is explicit about the material: it operates on what "appears from the statement in the plaint". The plaintiff writes the statement on which the clause operates.

The choice of forum is settled at the same stage, and it is the only one of these questions whose consequence is a return rather than a rejection — which is to say, the only one that sends the plaint onward instead of ending the proceeding.

Order VII therefore distributes the risk of a failed plaint in a particular way. The errors of filing are met with a demand for correction and a time to make it. The errors of drafting are met with a decree, which carries an appeal and a further appeal on a substantial question of law, and precludes nothing, except where the ground of rejection was a bar that would preclude the fresh plaint anyway. The error of forum is met with an order, which is appealable once, and not at all if the plaintiff asked to keep his place.

None of this is a measure of how serious the mistake was. It is a consequence of which rule the Court reached for. The plaintiff's only reliable influence over that is exercised before the plaint is presented, in the two clauses of Rule 11 that read only what he wrote.

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Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.