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A Comprehensive Analysis of Rejection of Plaint on the ground of
Maintainability: From Practical Approach
F.A.T. NO. 681 of 2019
F.A. NO. 424 of 2019
Manzur Morshed Khan and others
…… Plaintiffs-Appellants.
-Versus-
Bangladesh Bank and others.
……. Defendants-Respondents.
Written Submission on behalf of the Plaintiffs-Appellants-
1.0. Misapplication and Misinterpretation of the ratio
That the plaintiffs filed the Title Suit for declaration which was dismissed by
rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908
(shortly referred to as the ‘CPC’) vide judgment and decree dated 10.07.2019. In
passing the said judgment, the learned court below referred 3 (three) judgments,
which are in fact different from the facts, circumstances, related laws and other
issues. The differences are summarized below-
1.1. BSRS vs. Rahman Textile Mills, 51 DLR (AD) 221 (shortly referred as
‘BSRS Case’) -
- In BSRS case, by the majority decision the plaint was rejected upon an
application under Order 7 Rule 11 of the Code of Civil Procedure filed by the
defendants. But in the present case, the plaint was rejected on the very stage of
admission before issuing summon/notice upon the defendants.
- In BSRS case, by the majority decision the plaint was rejected not for the
contents of the plaint or barred by any law but on the ground that the very reliefs
claimed in the suit are specifically barred under Article 34(5)(a)(i) or (ii) or (iii) of
Bangladesh Shilpo Rin Sangstha Order, 1972. The reliefs were barred under law,
thus plaint was barred by law for seeking barred reliefs under law. But in the
present case, the reliefs claimed by the plaintiffs are not barred under any law.
- In BSRS case, the majority decision rejected the plaint not on the ground of
maintainability of the suit but on the ground of ousted provision of law. The ousted
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provision created bar upon those reliefs. But in the present case, there is no such
ouster provision of law.
- The stages of BSRS case and the present suit are completely different. The
former one was long after filing this suit, service of summons, appearing by the
parties and contesting the same; but in the latter case it was only on the preliminary
stage admission of the suit where no summons/notice were served, defendants did
not appear, and none contested the suit.
1.2. WB Industrial Corp vs. Deen Mohammad, 48 DLR (AD) 50 (shortly
referred to as ‘WB Case’) -
- In WB case, the plaint was rejected because there was an application filed by
the defendant under Order 7 Rule 11 before the Hon’ble Court on the ground of
Article 34(5) of the Bangladesh Shilpo Rin Sangstha Order, 1972. But in the present
suit, the plaint was rejected suo moto.
- In WB case, though the plea of malafide was taken, however the Court did
not allow the plea of malafide and bonafide saying that the issue of malafide or
bonafide involved disputed question of fact which required continuation of the suit,
and the plaint was rejected on different ground arising out of the ouster provision of
law. That ouster provision barred the parties from claiming certain reliefs. But in
the present case, the plaint was rejected suo moto without having any such ouster
clause under law. The reliefs prayed in the present suit are not barred under any
law.
- The stages of WB case and the present suit are completely different. The
former one was long after filing this suit, service of summons, appearing by the
parties and contesting the same; but in the latter case it was only on the preliminary
stage admission of the suit without any issuance of summon upon the defendants.
1.3. Burmah Eastern Ltd vs. Burmah Eastern Employees Union, 18 DLR 709
(shortly referred to as ‘Burmah Case’) -
- In Burmah case, the plaint was rejected upon the application filed by the
defendant under Order 7 Rule 11. But in the present suit, the plaint was rejected suo
moto.
- In Burmah case, the very question of ‘legal character’ was questioned, but in
the present suit no such question was raised as to ‘legal character’ of the parties as
well as ‘nature of the suit’.
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- In Burmah case, the Court came to the conclusion that from the mere perusal
of the plaint, it appeared prohibited as well as barred under and by law. But in the
present suit there is no such specific prohibition under law in filing the present suit.
- The stages of Burmah and the present suit are completely different. The
former one was long after filing this suit, service of summons, appearing by the
parties and contesting the same; but in the latter case it was only on the preliminary
stage admission of the suit, just after filing the suit.
Remarks: Therefore it appears that the learned trial court below was out of total
misreading, misconception and misunderstanding of the aforesaid cases applied the
ratio in the present case very arbitrarily and also without applying judicial mind.
2.0. Reference of Article 41(1) of the Bangladesh Bank Order, 1972 in the
impugned judgment –
Article 41 provides that-
“41. (1) No suit or other legal proceedings shall lie against the Bank or
any of its Officer for anything which is in good faith done or intended to
be done in pursuance of Article 36 or Article 37 or Article 38 or Article
39 or Article 40 or in pursuance of the provisions of Chapter IV.
(2) No suit or other legal proceedings shall lie against the Bank or any
of its Officers for any damage caused or likely to be caused by anything
which is in good faith done or intended to be done in pursuance of
Article 36 or Article 37 or Article 38 or Article 39 or Article 40, or in
pursuance of the provisions of Chapter IV.”
The very words ‘good faith’ are the riders of Article 41 which are ultimately
providing some sort of indemnity or liberty or exemption to the bank or its officers
from any suit or legal proceeding for any kind of work or performance in pursuance
of some provisions of law thereof done/carried out in course of duty. In no way, it
restricts/prohibits/precludes/bars upon filing any suit or other legal proceedings in
case of ‘dispute’ arising between the borrower and the creditor bank. Article 41
does not create any express or implied bar upon any relief or contents of a pleading.
The reliefs prayed in the present suit are in no way barred under Article 41.
No definition of good faith is provided under the Bangladesh Bank Order. General
Clauses Act, 1897 provides a definition in the tune “Section (20) : A thing shall be
deemed to be done in "good faith" where it is in fact done honestly, whether it is
done negligently or no”. But the present dispute between the plaintiffs and the
defendants is not a matter of good faith. It is a ‘dispute’ of civil nature which is to
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adjudicated by adducing proper evidences and witnesses before the Court of law.
But the learned trial court below failed to make this difference, and under the
misconception of law referred Article 41 in this suit.
3.0. ‘Return of Plaint’ vs. ‘Rejection of Plaint’
3.1. Return of Plaint
Where at any stage of the suit, the Court finds that it has no jurisdiction, either
territorial or pecuniary or with regard to the subject-matter of the suit, it will return
the plaint to be presented to the proper Court in which the suit ought to have been
filed. Rule 10A of the Civil Rules and Orders lays down the procedure to be
followed by the Court before the plaint is ordered to be returned to be presented to
the proper Court. It is inserted to obviate the necessary of serving the summons on
the defendants where the return of plaint is made after the appearance of the
defendants in the suit. An appellate Court can also return the plaint to be presented
to the proper Court. The Judge returning the plaint should make endorsements on it
regarding (i) the date of presentation; (ii) the name of the party presenting it; and
(iii) reasons for returning it. For not filing of proper Court fees, a plaint can be
rejected too. On the preliminary stage of suit i.e. just after filing the suit, the court
can only return or reject the plaint on the above grounds, as applicable. None of the
aforesaid things happened in this case.
3.2. Rejection of Plaint
The provision of rejection of plant is only provided under Order 7 Rule 11 of the
Code of Civil Procedure on the following grounds -
(a) Where it does not disclose a cause of action.
(b) Where the relief claimed is undervalued.
(c) Where it is insufficiently stamped.
(d) Where the suit appears to be barred by any law.
In the present suit, the trial court below applied the provision (d) using the word
‘explicitly barred by law’. Learned Senior Advocate Mahmudul Islam in his book
on the Law of Civil Procedure explained ‘express bar’. For ready reference, some
important portions are quoted below-
“By “expressly” barred is meant bar by any enactment for the time
being in force.1 Jurisdiction of the civil court to entertain a suit, though
1. Kalipada v. Nurul Islam, 2004 BLD 395.
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of a civil nature, may be barred if it is so provided in a statute. There
are, in fact, many statutes which have made provision specifically
ousting jurisdiction of the civil courts in specified matters.2 A
statutory provision ousting jurisdiction of the civil court must be
strictly construed3 and the exclusion of jurisdiction must be clear and
beyond doubt.4 Bar under s. 44 of the Acquisition and Requisition of
Immovable Property Ordinance against a suit challenging any order
passed or action taken under the Ordinance does not extend to a suit
for declaration that the plaintiff is entitled to the compensation
awarded.5 S. 133(2) of the Code of Criminal Procedure provides that
no order of the Magistrate duly passed under s.133 for removal of
nuisance shall be called in question in any civil court. In view of art.
117 of the Constitution, the civil court’s jurisdiction is ousted in
matters which fall within the jurisdiction of the Administrative
Tribunal.6 S.26 of the Union Parishad Ordinance has put a clear bar to
the determination of election dispute by any court except the election
tribunal.7 The PDR Act bars civil suits under certain circumstances;
but when a property has been auction sold in a proceeding under the
PDR Act in which the plaintiff was not a party, his suit is not barred
under s.37 of that Act.8 S. 102 of the Waqf Ordinance can be
questioned in any court except as otherwise expressly provided in the
Ordinance.9 However, it has been held that where in a suit the order of
the Waqf Administrator for eviction has been challenged and
declaration of title to the waqf property by virtue of adverse
possession has been sought, prima facie there exists a civil dispute and
ss.50 and 102 of the Waqf Ordinance does not operate to oust the
jurisdiction of the civil court to adjudicate the dispute.10”
In this connection, it is pertinent to quote from the finding of Hon’ble dissenting
Judge in said BSRS case-
“Generally speaking under Section 9 of the Code of Civil Procedure any
Civil Court has jurisdiction to try all suits of civil nature excepting suit of
which their cognizance is either expressly or impliedly barred. But it has
been consistently held since the decision in Secretary of State V. Mask &
Company, AIR 1940 PC 105 that "the exclusion of the jurisdiction of the
courts is not to be readily inferred, but that such exclusion must either be
explicitly expressed or clearly implied. It is also well settled that even if
jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into
cases where the provisions of the Act have not been complied with, or the
statutory tribunal has not acted in conformity with the fundamental principles
of judicial procedure."
In the vein of this decision there are numerous decisions, some of them with
extended principles. In the case of Abdur Rouf and others Vs. Abdul Hamid,
2. Director, Housing & Settlement v. AM Hawlader, 9 BLC (AD) 51. 3. Abdul Wadud v. Bhawani, AIR 1966 SC 1718. 4. Dhulabhai v. M.P., AIR 1969 SC 78; Hilly Housing Co-op v. Akhtaruzzaman, 54 DLR 46; Papuri v.
Putcha, AIR 1934 PC 84 (When there is a bar under a law, the court has to strictly construe the provision as
the general rule is in favour of the jurisdiction of the court). 5. Animal Protection Society v. Laxman Chandra, 56 DLR 522. 6. Habibur Rahman v. Accountant General, 1987 BLD 44. 7. Rafiqul Alam v. Mustafa Kamal, 42 DLR (AD) 137. 8. Parul Bala v. Suruj, 53 DLR 481. 9. Syed Masud Ali v. Asmatullah, 32 DLR (AD) 39. 10. Abdul Malek v. Mahbubey Alam, 10 MLR (AD) 8.
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17 DIR (SC) 515 certain proceedings were challenged in the civil court
amongst other grounds on the ground of malafide. The civil court declined
jurisdictions in view of the ouster clause. The High Court on appeal set aside
the Order and remanded the case to the trial court holding that the court had
jurisdiction to try the suit. The High Court's Order was approved by the
Supreme Court of Pakistan with the following observation:
“The decision of the question whether the Civil court had
jurisdiction in the present case would depend cm whether the
impugned orders and proceedings were without jurisdiction.
There is in this case an attack on the proceeding on the ground
of malafide too. A malafide Act is by its nature an Act without
jurisdiction. No legislature when it grants power to take action
or pass an Order contemplates a malafide exercise of power. A
malafide Order is a fraud on the statute. It may be explained
that a malafide Order means one which is passed not for the
purpose contemplated by the enactment granting the power to
pass the Order, but for some other collateral or ulterior
purpose.”
Hamoodur Rahman, C.J. speaking for the Supreme Court of Pakistan had
occasion to take a similar view in the case of Federation of Pakistan Vs.
Saeed Ahmed, PLD 1974 (SC) 151. In course of his speech he laid great
stress upon the malafide acts under a special statute ousting jurisdiction as an
element to make the ouster clause ineffectual. He said:
“Indeed malafide acts stand on the same footing as acts done
without jurisdiction. Similarly coram non judice also stand on
the same footing because these words would literally, mean
that they have been done by an authority or body exercising
judicial or quasi-judicial powers which was not properly
constituted even under the Law under which it was set up and
that its decision is not a decision of a competent authority. If
this be so then such acts do not also qualify for validation and
they have not been saved from scrutiny by the ouster clause,
no matter how widely that ouster clause may be worded.”
Remarks: At this juncture, it can be said that Article 41 does not create any
bar upon any relief, and it has no application under Order 7 Rule 11(d). The
learned court below failed to create the basic difference by applying his
judicious mind.
One issue is to be noted that there is clear difference between Order 7 Rule
11(d) Rule 11(b). Rule 11 (b) empowers the Court to look into the merit and
contents of the plaint whether plaint discloses any cause of action or not. But
the same has to be done after framing specific issue on that point. Whereas,
Rule 11(d) empowers the court to reject the plaint on the ground where the
relief claimed in the plaint is barred under law, thus the very jurisdiction of
the civil court is barred under any law to adjudicate the case and award the
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relief as prayed for. Both (b) and (d) involve the questions of law which can
be done after framing specific issue as those points.
4.0. Application of Section 151 in Rejection of Plaint
Section 26 of the Code of Civil Procedure provides that every suit shall be instituted
by the presentation of a plaint or in such manner as may be prescribed. Order IV
further provides that after institution of each suit, the same shall be numbered and
registered as per the admission. Order 4 provides as follows-
“Order IV
Institution of Suits
“(1) Every suit shall be instituted by presenting to the Court or such
officer as it appoints in this behalf a plaint together with as many true
copies of the plaint as there are defendants for service of summons
upon such defendants.
(1a) The Court fees chargeable for service of summons shall be paid in
the case of suits when the plaint is filed, and in the case of all other
proceedings when process is applied for.
(1b) A plaintiff shall file, along with the plaint, for each defendand a
copy of the summons along with a pre-paid registered
acknowledgement due cover with complete and correct address of the
defendant written on it.
(2) Every plaint shall comply with the rules contained in Orders VI
and VII, so far as they are applicable.
2. The Court shall cause the particulars of every suit to be entered
in a book to be kept for the purpose and called the register of civil
suits. Such entries shall be numbered in every year according to the
order in which the plaints are admitted.”
Rules 47 to 55 of Civil Rules and Orders provide the provisions for presentation,
registration, etc and examination of plaint. For ready reference, the provisions are
quoted below-
“47. Ordinarily the Sheristadar or in his absence the officer acting as a
Sheristadar shall be authorized to receive plaints.
48. Every plaint brought for presentation shall have affixed to the top
left hand corner of its first page, a slip of paper in the following form,
with the particulars required written on it excepting the filing number
which should be left blank:
No. …………………………..
Class of suit …………………
Plaintiff ……………………..
Defendant …………………...
Value of suit ………………..
Advocate ……………………
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Note: It should be particularly noted that additions made by the
Supreme Court (High Court Division) to Schedule 1 of the C.P.
Code require that every plaint shall be accompanied by the
necessary number of its copies, draft forms of summons, and fees
for the service thereof, (Or. 7, r. 9(1-A), and a statement of the
party’s address for service (see rule 18 and Or 6, r. 14-A).
49. (1) Immediately on receipt of a plaint, a serial (consecutive) number
shall be marked on it to indicate the sequence of filing, the same number
being simultaneously noted on the attached slip of paper. The slip shall
then be detached, stamped and made over to the person presenting the
plaint, then and there. These numbers shall be quoted in all papers that
may be filed hereafter in connection with the plaints so long as they are
not registered.
Note: All plaints shall be marked with filing number on the same
day they are filed and the slips attached shall be delivered
forthwith.
(2) All such plaints shall be entered at once in the prescribed register
No. (R) 12-A called the Filing Register in the order in which they have
been filed.
Note: A separate volume shall be opened for each class of suits
from the beginning of January each year. The number in the
Filing Register will be the same as the number in the General
Register of suits.
50. All plaints presented must, on being received be registered (i.e.,
entered in the Register of Suits) in the same order as they appear in the
Filing Register, irrespective of their possible rejection (under Or. 7, R
11) or return (for amendment or presentation to proper Court).
51. Every plaint shall ordinarily be registered on the day it is received
and should it be found impossible, for any reason, to register it within
24 hours of its receipt, the fact shall be reported to the presiding Judge
of the Court concerned.
Note: Simultaneously with the registration of a plaint and the
fixing of the first date, the suit should be entered in advance in
that days page of the Diary of the Court under the heading
appropriate to the purpose for which the first date is fixed.
52. As soon as possible after registration of the plaint, the first date
fixed for the suit and the purpose for which it has been fixed shall be
entered in columns 5 and 6 of Filing Register [Form No. (R) 12-A].
53. The first dates fixed for appeals and all petitions (excluding
execution petitions) that require registration shall be entered in a register
in Form No. (M) 1-Daily register. Entries shall be made therein from
day to day until the Form is exhausted. If the same register is used for
miscellaneous cases, appeals, etc., they should be grouped separately
under the different heads. The presiding Judge shall put his dated
signature below the last entry for each day. The register shall be laid at
some conspicuous part of the Court room everyday by the sitting hour
for inspection by the parties and the Advocate.
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Note: Form No. (M) 1-Daily register of Petitions and Appeals
Registered shall be destroyed after three months.
54. The date of filing shall be stamped on a plaint as soon as it is field.
55. (1) On presentation or receipt of a plaint, the Sheristadar of the
Court shall examine it in order to find out whether all the requirements
of law have been complied with. This examination should be
particularly directed to ascertaining, among other things-
(i) Whether the plaint bears full court-fee stamps in accordance with
the valuation put upon it;
(ii) Whether it has been property signed and verified (Or. 6, rr. 14 and
15);
(iii) Whether it complies with the requirements of Or. 7, rr. 1, 2, 3, 4,
6, 7 and 8;
(iv) Whether it is accompanied by the necessary copies of plaint and
process-fees and draft forms of summons (amended Or. 7, r. 9(1-A);
(v) Whether the documents attached to the plaint (if any) are
accompanied by a list in the prescribed form [Or. 7, r. 9(1), see also r.
9(4)];
(vi) Whether it is accompanied by the party’s address as required by
Or. 6, r.14-A and contains the necessary particulars (vide rule 21);
(vi) Whether in the case of minor plaintiffs and defendants the
requirements of Or. 32, rr. 1 and 3 have been complied with and the
necessary application supported by an affidavit verifying the fitness
of the proposed guardian ad litem of t he minor defendant (s) has
been filed;
(viii) Whether the suit is within the pecuniary and territorial
jurisdiction of the Court;
(ix) Whether the vakalatnama has been properly accepted and
endorsed the Advocate [vide rule 822, and in particular sub-rule (6)
of the rule], and whether in the case of illiterate executants, the
provisions of rules 821 and 822(4) have been complied with.
(2) The officer examining the plaint is required to certify on the top
left hand margin of the first page of the plaint the sufficiency or
otherwise of the stamp borne and to note the amount of deficiency, if
any. A second certificate is to be appended if and when the deficiency
is collected.
(3) The officer examining the plaint should refer to the presiding
Judge if he thinks that it should be returned or rejected for any
reason. It will then be for the Judge to deal with the matter.
Note: 1, See also paragraph 1, 2 and 3 of the Civil Suit
Instructions manual, 1935.
Note: 2, As to appearance of defendant and filing of written
statement, see paragraph 9 to 11, civil Suit Instructions
Manual, 1935.
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Note: 3. As to the procedure to be followed in cases where
there are one or more minor defendants (see rule 124 chapter
6).
5.0. Rejection of plaint on ground of maintainability
As per the aforesaid provisions of law, after institution of suit a duty automatically
casts upon the Court to go to next step by issuing and serving summons upon the
parties under Order 5, which is after chapter 4 of the CPC. On the other hand, the
Court may return the plaint on the grounds stated earlier or may raise the question
of maintainability only after framing issue on that point. Because, the ‘question of
maintainability’ is absolutely an issue of law which cannot be determined without
framing specific issue on that point. Order 14 Rule 2 provides that-
“Where issues both of law and of fact arise in the same suit, and the
Court is of pinion that the case or any part thereof may be disposed of
on the issues of law only, it shall try those issues first, and for that
purpose may, if it thinks fit, postpone the settlement of the issues of fact
until after the issues of law have been determined.”
Even if the Court finds a plaint is not properly formulated, it may not return or
reject the plaint without given with the opportunity of amendment of plaint.
It was held in Fazlur Rahman vs. Rajab Ali, 30 DLR (SC) (1978) 30 -
“The main consideration underlying the general rule which deprecates
piecemeal trial is to avoid a protracted litigation and unnecessary
expenditure. The reason behind the special provisions of the Code
which seek to give priority to the determination of certain issues before
taking up the hearing of other issues appears to be also precisely the
same namely, economy of time and expenses. These special provisions
are contained in Order 14, Rule 2 and Order 15, Rule 3 of the Code and
there is hardly doubt the main object behind these provisions is the
shortening of time and the lessening of expenditure. As we have already
noticed, the provision of Order 14, Rule 2 is clearly obligatory but under
Order 15, Rule 3 of the Code the Court has a kind of discretion. What is
necessary id the trial of a suit is to reconcile the special provisions as to
the trial of certain issues prior to the determination of the suit on other
issues with the general rule deprecating piecemeal trial and to make an
harmonious application of the different provisions of the Code.
In the present case it appears that the Court rightly set down the hearing
of the suit before framing the issues formally on an issue of law as to the
maintainability of the suit which goes to the root of the litigation and
raises the question of jurisdiction of the Court to try eth dispute. It,
however, appears that subsequently this question was completely lost
sight of for some time, but as soon as it was brought to the notice of the
learned Subordinate Judge, he became alive to it and set down the
hearing of the suit on the question of its maintainability indicated above.
Having regard to the nature of the dispute raised in the suit there can be
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no manner of doubt that, the question as to the maintainability of the
suit relates to an issue of law, the decision of which will settle the
question of jurisdiction and dispose of the entire suit and as such it
clearly comes within the provision of Order 14, Rule 2 of the Code.
Under the circumstances, we do not think that the learned Subordinate
Judge was wrong in any way in setting down the hearing of the suit on
the question of maintainability, the High Court's decision for quick
disposal of the suit notwithstanding. We appreciate the anxiety
expressed by Mr. N. U. Haider, learned Counsel appearing for
Respondents No. 1 and 2 for the expeditious disposal of the suit in
which the question as to the validity of an election has been raised but
the procedure suggested by him for such disposal, in support of which
he has advanced his contentions, is not only contrary to the provision of
the Code but is also not likely to serve the purpose of shortening the
litigation.”
In Nakul Chandra Saha and Ors. vs. Babu Subash Chandra Sarker, 4 MLR (AD)
(1999) 426 it was held that -
“The learned Single Judge by the impugned Judgment and order made
the Rule absolute with the finding that the plaintiff made out a case that
it had a right to administer the Trust Estate to the exclusion of defendant
No. 1 who was an usurper causing irreparable loss and damage to the
trust property and that in view of the nature of allegation the said is not
barred under section 42 of the Specific Relief Act and that where a
plaintiff seeks for a declaration that he has a right in the suit property to
the exclusion of the defendant and asked in the form of a declaration the
defendant has no right or title therein the relief prayed for is not outside
the ambit of section 42 of the Specific Relief Act. The learned Single
Judge also held that the question of maintainability of the suit may be
determined at the trial and the plaint could not be thrown out in limini.
Mr. M Nurullah, learned Advocate for the petitioner, submits that from
the plaint it appears that defendant No. 1 has been possessing the suit
property and conducting the Trust Estate as one of the trustees and the
plaintiff having failed to produce any evidence to show that he was ever
appointed as trustee of the Estate, he is not entitled to get any
declaration of status or right and his prayer being in the plaint was for a
negative declaration. The learned Single fudge wrongly not agreeing
with the concurrent view of the Courts below who rejected the plaint of
the instant suit on the ground that the suit was not maintainable for
negative declaration and was barred under section 42 of the Specific
Relief Act. He further submits that the learned Single Judge of the High
Court Division fell in error of law in holding upon misreading of the
plaint that the plaintiff's suit is one in assertion to his own right to deal
with the Estate to the exclusion of the defendant No. 1 and, as such, the
learned Single Judge fell in error in holding that question of
maintainability of the suit cannot be decided under Order VII rule 11
CPC. He also submits that the learned Single Judge was wrong to
interfere with the concurrent decision of the Courts below in revisional
jurisdiction.”
In Abdul Jalil and others vs. Islamic Bank Bangladesh Ltd. 20 BLD (AD) (2000) 278, 53
DLR (AD) 12, it was held that -
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“It is well settled now that a plaint may be rejected under Order 7 Rule
11 of the Code of Civil Procedure merely on a plain reading of the
plaint but in exceptional circumstances the court may invoke its inherent
jurisdiction and can throw the plaint out in limini. It is also well settled
that the plea of implied bar should be decided on evidence unless the
fact disclosed in the plaint clearly indicate that the suit is not
maintainable. In exceptional cases recourse may be taken even under
section 151 of the Code of Civil Procedure. It is also well settled that in
an application for rejection of plaint on the ground of undisclosed cause
of action the court should not dissect the plaintiff's case part by part.”
It has been held in the case of Bangladesh Jatiya Samabaya Shilpa Samity Ltd. vs.
M/S Shan Hosiery, Proprietor Md. Abu Taleb and others, reported in 12
BLT(AD)(2004) 253, which is quoted below -
"With regard to rejection of plaint under Order VII Rule 11 of the Code
of Civil Procedure, the High Court Division rightly found that in
deciding the question as to whether a plaint is liable to be rejected the
court is always required to peruse the plaint only and court is not
permitted to travel beyond the plaint to dig out grounds to reject the
plaint which is a settled principle of law."
It has been held in the case of Ismat Zerin Khan vs. The World Bank and others, 11
MLR (AD) (2006) 58 that –
"Plaint cannot be rejected under Order VII Rule 11 of the Code of Civil
Procedure either on the question of law or on fact before the filing of the
written statement by the defendant."
In an unreported case, Aa. Na. Ma. Selim Ullah vs. Kamrun Nahar Kamal and
others, Civil Revision No. 3929 of 2014 it was held by the Hon’ble High Court
Division that-
Further, after examining the series of decisions of our Apex Court
regarding of the Code of Civil Procedure, we may refer some of the
decision Order VII Rule 11 reported in Abdul Malek Sawdagar Vs. Md.
Mahbubey Alam, 57 DLR (AD) 18, Nur Muhammad Vs. Mainuddin, 39
DLR (AD) 1; Abul Khair (Md) Vs. Pubali Bank Ltd., 53 DLR (AD) 62,
Bangladesh Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd., 51 DLR
(AD) 221, Nurunnessa Vs. Mohiuddin Chowdhury 49 DLR (AD) 234,
Eastern Bank Ltd. Vs. Sub-Ordinate Judge, 49 DLR 531, Anath Bandhu
Guha & Sons Ltd. Through its Attorney Md. Sirajul Hoq Vs. Babu
Sudhangshu Shekhar Haider, 42 DLR (AD) 244, Kazi (Md) Shahajahan
and another Vs. Md. Khalilur Rahman Madbar and others, 54 DLR
(AD) 125 and Ismat Zerin Khan Vs. the World Bank and others, 11
MLR (AD) 58, wherein the principles laid down as under:-
(I) The well settled principle of laws relating to Order VII Rule 11
are that the plaint can be rejected only on reference to plaint
itself as whether it is barred in any of the four clauses of Order
VII Rule 11 of the Code of Civil Procedure.
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(II) Plaint cannot be rejected on defense material as well as on mixed
question of law and fact.
(III) Where evidence is required and where there is material, plaint
cannot be rejected.
(IV) Plaint can be rejected if it does not disclose a cause of action and
barred by any law.
(V) There is no hard and fast Rule when an application for rejection
of plaint is to be filed but ends of justice demands that it must be
filed at the earliest opportunity.
(VI) Plaint cannot be rejected before filing of the written statement.
Now, let us focus in the Indian jurisdiction regarding the principles of
rejection of plaint. In the case of M/S Crescent Petroleum Ltd. Vs.
Manchegorsk and another, AIR 2000 Bom 161 at 168 it has been held
that:-
'This power ought to be used only when the Court is
absolutely sure that the plaintiff does not have an arguable
case at all. The exercise of this power though arising in
Civil Procedure can be said to belong to the realm of
criminal jurisprudence and any benefit of the doubt must
go to the plaintiff, whose plaint is to be branded as an
abuse of the process of the Court. This jurisdiction ought
to be very sparingly exercised and only in very
exceptional cases. The exercise of this power would not
be justified merely because the story told in the pleading
was highly improbable or which may be difficult to
believe.'
Now, let us consider the inherent power of the Court, where a plaint
may be rejected by the Court even the provisions of Order VII Rule 11
of the Code of Civil Procedure are found not to be applicable.
In the case of Abdul Jalil and others vs. Islamic Bank Bangladesh
Limited and others, reported in 53 DLR (AD) 12, it has been held that:-
"Now it is a well settled principle of law that if the continuation
of the suit is found to be an abuse of the process of the court, if
the suit is foredoomed or if the ultimate result of the suit is as
clear as the day light, the suit should be buried at its inception by
rejecting the plaint by invoking inherent powers of the Court
provided under section 151 of the Code of Civil Procedure."
Further, on perusal of the facts of the present case, it appears to be
distinguishable from the case reported in 53 DLR (AD) 12. In
exceptional situation a plaint can be rejected under Section 151 of the
Code of Civil Procedure even if it does not come within the mischief of
the Rule, but such situation is absent in the present case.
Now, keeping in mind, all the principles relating to Order VII Rule 11
of the Code of Civil Procedure, we have thoroughly gone through the
plaint and considered the submissions of the learned Advocates for both
the parties very carefully.
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The contentions of the learned Advocate for the petitioner are that the
plaint is liable to be rejected as because the alleged registered deed of
partition either is not a sale deed or a decree of a court rather it is a
family settlement deed among the co-sharers for their ancestral
properties and cannot be cancelled at the instance of the two co-sharers
as per provision of Section 39 of the Specific Relief Act and further
non-consideration of the validity of the impugned registered partition
deed under Section 60(2) of the Registration Act, 1908, the trial Court
has committed an error of law, in our opinion all these issues have no
manner of application in the present case.
Further, the submissions of the learned Advocate for the opposite parties
are that the defendants have not yet filed their written statements, are
not fully correct as it appears that defendant No. 12 has filed a written
statement denying the averments made in the plaint. However,
defendant No. 3 who has filed the application for rejection of plaint did
not file the written statement.
In the light of the clear pronouncement of law relating to Order VII Rule
11, it is well settled principle of law that to decide the fate of a plaint
under Order VII Rule 11 of the Code of Civil Procedure, averments in
the plaint have to be read without looking at the defense and as such
whether the registered deed of partition is a sale deed or a decree of
Court or a family settlement deed among the co-sharers for their
ancestral properties and registration and endorsement was genuine,
regular and in order and plaintiffs have no possession over the suit land
rather the petitioner is in possession of the same, in our view all these
issues can only be decided by taking evidence by the trial Court.
It has been decided by our Apex Court in the Case of Head Mistress,
Hazrat Shah Ali Girl's High School Vs. Md. Ibrahim reported in 65
DLR (AD) 300 that, "The suit cannot be finally adjudicated without
taking evidence. The High Court Division acted beyond his jurisdiction
and finally adjudicated the case which he cannot do before trial and he
also cannot allow the prayer of the plaintiff directly asking authority to
give fresh appointment to the plaintiff from the date of dismissal."
Similar view has been expressed in the recent case of Comprehensive
Holdings Ltd. Vs. MH Khan Monju reported in 69 DLR (AD) 420.
From the above discussions, it appears that the grounds urged for in the
application for rejection of plaint are absolutely the subject matter of
evidence, which cannot be decided before taking evidence.
Now, on plain reading from the statements of plaint of the present case
it is evident that the same clearly discloses the cause of action, the relief
claimed is not under valued, the plaint was not written upon the paper
insufficiently stamped and not barred by any other law.
So, it is our considered view that the rejection of a plaint is a serious
matter and the Court has a duty to examine the plaint very carefully
when considering the issues relating to Order VII Rule 11 of the Code
of Civil Procedure. It cannot be ordered without satisfying the
requirement of the above said provision and only in very exceptional
cases, this power should be exercised.
Considering the above facts and circumstances of the case and after
examining the decisions of our Apex Court as well as of the Indian
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Jurisdiction, we can safely come to a conclusion that the learned Court
below has not committed any error of law in rejecting the application,
for rejection of plaint under Order VII Rule 11 of the Code of Civil
Procedure, rather the learned Court below rightly passed the impugned
Order dated 27.03.2014.”
In another case, Md. Shofiqur Rahman vs. Bangladesh Bank and others, Civil
Revision No. 878 of 2016 it was held by the Hon’ble High Court Division that -
“To deal with the mater another legal aspect should be taken into
consideration whether the present suit can be dismissed on the
preliminary point of maintainability without framing any issue of law to
the very root of the case, such as on the point of bar of the suit by any
provision of law.
Order XIV, Rule 2 clearly indicates that if the court is of opinion that
the suit or any part thereof may be disposed of on an issues of law only,
it shall try the issue of law even without setting the issues of fact.
The power of try preliminary issue of law is to be exercised only when
it is clear that the decision will decide the suit finally once for all.
Now, keeping in view the above settled principles in deciding issues in a
suit particularly any issue of law independently, when the present case
is considered, it is found that the suit was dismissed by the learned Joint
District Judge holding that the same is no maintainable while disposing
of an application filed by the plaintiff under Section 151 for staying
operation of the publication of the plaintiffs name in the CIB report of
Bangladesh Bank classifying him as loan defaulter. On scrutiny of the
record it appears that after filing of the suit on 06.04.2016, the plaintiff
at one filed an application for stay and only on that connection the
learned Joint District Judge on next day by order dated 07.04.2016 held
that the suit was not maintainable mainly on the ground that the plaintiff
has no locus-standi to sought for a declaration against the report
published by the CIB of Bangladesh Bank declaring the plaintiff as loan
defaulter. It appears that the trial court without framing any issue in the
suit passed the impugned order of dismissal of the suit on the ground of
maintainability.
In this connection reliance my b e placed to the decisions reported in 30
DLR (AD) 30 and 50 DLR (AD) 1.
Further the court has no option having regard to the provision of Order
XIV, rule 2 of the Code of Civil Procedure should not decide the
question of maintainability without framing issue on it. Thus the Joint
District Judge wrongly decided the question of maintainability of the
suit without framing proper issues.- Reference 48 DLR 367.”
6.0. Scope of Section 42 of the Specific Relief Act, 1877 -
There is no formal definition of ‘the suit for declaration of title’ or ‘title suit’ under
any statute. In general, suit for declaration of title always denotes a civil suit filed
under Section 42 together with Section 5 of the Specific Relief Act, 1877
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(henceforth referred to as ‘SR Act’) praying declaratory reliefs. Of all provisions of
the said Act, Section 42 is the most frequently invoked in civil litigations in
Bangladesh.11 Under this Section, declaration of title suit is filed for declaratory
relief. ‘Declaratory relief’ and ‘declaration of title’ are different. The second one is
the part of the former synthesis which offers various kinds of reliefs in the nature of
declaration that includes declaration of title. Though most of the civil suits seeking
declaratory reliefs are generally registered as ‘title suit’ in our country, however not
all the declaratory prayers are for declaration of title, such as, partition suit, other
class suit and others12.
In this context, ‘title’ shortly refers to ‘entitlement’ so far reliefs are concerned, in
which the party seeking relief is entitled to or not. Any right or legal character in
which a person is entitled can file a title suit. However, ‘entitlement’ refers to a
wider scope than ‘title’. Under the circumstances, whether title suit under Section
42 can embrace all kinds of declaratory reliefs is still open for controversy. It’s not
even required with hard and fast rule, rather openness of the declaratory prayers
with the discretionary power of the Court keeps Section 42 time worthy and well
espousal. This is one of the main reasons behind that still the application of Section
42 has not fallen blur despite the promulgation of several new enactments e.g. Artha
Rin Adalat Ain, 2003, Companies Act, 1994, Bank Company Act, 1991, etc
restraining the jurisdiction of civil court to some extents. However, the wide scope
of declaratory relief exercisable with the discretionary power of the Court under
Section 42 is playing key role in civil litigation protecting the rights of the civilians
irrespective of the controversy whether this Section is exhaustive for entertaining all
kinds of declaratory reliefs.
Legal Originator
When a suit is filed for declaration of title, it is basically the relief which is sought
for in the form of declaration. The declaration is like praying for something to be
declared in favor of the party who is praying so (generally plaintiff) against the
party who will be bound by the declaration (generally the defendant). For example:
if the plaintiff is praying for declaring his or her title of ownership on certain land
against the defendant, the plaintiff will pray for declaring the title of ownership
from the Court. If the plaintiff is praying for declaring his or her dismissal from
service by the defendant is illegal and the same should not be binding upon him or
11Probir Neogi, The Law of Specific Relief (first published 2011, Mullick Brothers) 553. 12Example : praying that some documents are not binding, a committee is illegal, not entitled to the disputed
post or committee, not entitled to publish plaintiff’s name, a negotiable instrument is not binding, etc.
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her, then he or she will pray for declaring his or her dismissal from service is illegal
and not binding upon him or her.
Suit for declaration of title denotes a suit of civil nature filed under Section 42
whereupon the relief is fundamentally rooted in Section 5 of the same Act. Section
5 provides the types of specific reliefs can be given.13 The provision of Section 5(d)
provides the specific relief by determining and declaring the rights of parties
otherwise than by an award of compensation. Sections 42 and 43 elaborate this
relief further. Section 42 provides that any person entitling to any legal character or
property can file suit for declaration of title. It allows a person to file declaration
suit for his entitlement to any legal character or to any right as to any property
against any person denying or interested to deny his title to such character or right.14
Two very important words i.e. the elixirs of this Section are ‘entitlement’ and ‘title’
along with ‘legal character’ and ‘right as to any property’, which are to be examined
elaborately, as hinted above, for proper understanding the nature and scope of suit
for declaration of title.
Legal Character or Right
A suit for declaration is maintainable under Section 42 as to any legal character or
to any right as to any property of the plaintiff if the defendant denies or is interested
to deny his or her title to such character or right. If the above conditions are
satisfied, the plaintiff does not need to ask for any further relief than a mere
declaration.15
The concept of ‘legal character’ in Section 42 is wide enough to include the status
of a person. In order to entitle the plaintiff to bring a suit under Section 42, it is not
necessary that the defendant should actually deny the plaintiff’s legal character. If
the claim which might be set up by the defendant is a hindrance to the plaintiff in
the exercise of his or her rights or would expose him or her to liability if he or she
13 Section 5 : Specific relief is given-
(a) by taking possession of certain property and delivering it to a claimant;
(b) by ordering a party to do the very act which he is under an obligation to do;
(c) by preventing a party from doing that which he is under an obligation not to do;
(d) by determining and declaring the rights of parties otherwise than by an award of compensation; or
(e) by appointing a receiver. 14 Section 42 of the Specific Relief Act, 1877 reads out “Any person entitled to any legal character, or to any
right as to any property, may institute a suit against any person denying, or 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.
Explanation - A trustee of property is a "person interested to deny" a title adverse to the title of someone who
is not in existence, and for whom, if in existence, he would be a trustee.” 15Divisional Forest Officer, Dhaka vs. Md. Shahabuddin and others [2008] 5 ADC 91.
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disregarded, it he or she might come to Court for a declaration that the claim so set
up by the defendant was not well founded.16 Thus, ‘legal character’ denotes a
personal and special right not arising out of contract or tort, but of legal recognition.
For example, rejection of plaintiff's application for allotment may create legal
recognition enforceable against a person whose similar application is accepted.17
‘Legal character’ is nicely explained in the case of Burmah Eastern Ltd. vs. Burmah
Eastern Employees' Union18, wherein, legal character is used as synonymous with
the expression ‘status’. However, this ‘status’ or ‘character’ should be conferred by
law. It was held that 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.19
Therefore, the character i.e. the status of the plaintiff must have legality for seeking
relief. The relationship between the ‘legality’ and the ‘character of the plaintiff’
along with ‘the relief claimed thereon’ must have direct nexus and close connection.
It depends on the plaintiff, the subject matter and the relief sought for. Therefore, it
is ultimately each fact and situation that determines the legal status or legal
character of the parties. In addition, it’s not the parties only who determine their
characters. Parties express their position and status with their facts. It’s the Court
who is to decide the ‘status’ or ‘character’. It leaves the power of the Court
discretionary and wide. But it 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. This is patent. The plaintiff cannot allege any infringement of a right to
property.20 This discretionary power is to be exercised cautiously and not going
beyond the setting norms and principles developed through judicial pronouncement
throughout the years. A discussion on this point is delineated afterwards.
Apart from legal character, the person having right to any property also entitles a
person to file suit for declaration under Section 42. Right to any property means and
includes any right to any kind of property. Since under the Act, there is no
definition of ‘right’ or ‘property’ or ‘right to property’, therefore right may include
16Noor Jehan Begum vs. Eugene Tiscenko [1942] AIR Cal 325. 17Mirpur Mazar Co-operative Market Society Ltd vs. Secretary, Ministry of Works, Government of
Bangladesh and ors [2000] 52 DLR 263. 18 [1967] PLD Dac 190. 19Ibid. 20Ibid.
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any kind of rights which gives the claimant a proper standing for praying
declaratory relief. Property may include immoveable and moveable of any kind.
Definitions of ‘immoveable property’ and ‘moveable property’ are provided under
the Transfer of Property Act, 1882, the General Clauses Act, 1897, the Registration
Act, 1908 and others. An absolute owner of a property if gets dispossessed and his
title gets clouded, then the owner can file declaration suit for decreeing title in his or
her favor for making the same free from all clouds and disputes. A leaseholder can
file suit if he is dispossessed illegally. Anyone having right to any property can file
title suit.
This right may be present or future, but not too remote. A remote possibility of
acquiring title in any property (which is not certain yet) cannot create any standing
for seeking declaratory relief. The right must be existing interest and entitlement at
the very time of seeking relief. A mere contingent right which may never develop
into an actual right is not enough for a suit for declaration of title. The main
contention is that unless the claimant has the right to title, he or she cannot pray for
declaration of title. For getting and proving something in his or her favor he or she
must have had it, perhaps for once, perhaps recently has been deprived of his right,
but in all cases he or she must have right and he or she has to prove it, because in
the civil suit the party seeking relief must prove his case. The Court applying its
discretion determines the right of the claimant with regard to the relief prayed
before it. In exercise of this sound discretion, the Court should make a declaration
as to the right which exists though exercise of it may be contingent on something in
future.21 The Court has always the discretionary power to reach at the decision
regarding right (present or near future) of the parties in the subject matter of the
suit. Even legitimacy of a child born or in womb can be determined through
declaration suit.22 However, the spirit is that the right over the declaratory prayer
along with the very subject matter of the suit must exist and the nexus is not too
remote in any way. Be that as it may, although Section 42 is not exhaustive and
declarations independent of that provision is even permissible but a suit for
declaration, however, would not lie when the plaintiff is neither entitled to any legal
character or status nor clothed with any right.23
Discretionary Power
Relief under Section 42 is discretionary which cannot be claimed as of right.
Section 42 does not postulate all types of declarations but only a declaration that the
21Bombay Burma Trading Corp. vs. Smith [2000] ILR 17 Bom 197. 22 Mankuwar Asaram vs. Mt. Bodhi Mukundi and others [1957] AIR MP 211. 23Shafi A. Choudhury vs. Pubali Bank Ltd. and others [2002] 22 BLD 423.
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plaintiff is entitled to legal character or to any right as to any property and it
warrants this kind of relief only under certain special circumstances. Relief
enshrined under Section 42 is a discretionary relief and the said discretion is to be
exercised on sound judicial principles.24
The yardsticks for such discretion though has not been defined under this Section or
anywhere in the Act, the very words ‘against any person denying’ or ‘interested to
deny’ the title of the plaintiff to the legal character or right implicate the benchmark
for exercising such discretion. The Court must satisfy itself with the legal character
or right of the plaintiff along with the fact that his right has been denied or
interested to be denied by the defendant. The relationship between the plaintiff and
the defendant is ‘denial’. On the plaintiff’s part, the plaintiff has to prove his or her
legal right or status, and on the other hand, on the defendant’s part, the plaintiff has
to prove that the defendant has denied or is denying his or her legal right or status.
7.0. Application of Section 9 of the Code of Civil Procedure
Section 9 reads out as follows -
“9. The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Explanation.-A suit in which the right to property or to an office is
contested is a suit of a civil nature, notwithstanding that such right may
depend entirely on the decision of questions as to religious rites or
ceremonies.”
Explaining Section 9 D.F. Mulla explained in his book on the Code of Civil
Procedure, 15th Edition, 2012, p. 33-34 in the following manner –
“Scope
Section 9 relates to the subject-matter of jurisdiction of a court. As per s.
9, in all types of civil disputes, the civil Court has inherent jurisdiction,
unless a part of that jurisdiction is curbed from such jurisdiction,
expressly or by necessary implication, by any statutory provision and is
conferred on any other tribunal or authority.25 A statute, therefore,
expressly or by necessary implication, can bar the jurisdiction of Civil
Courts in respect of a particular matter. The plea of lack of jurisdiction
can be raised at any time, even in second appeal, so also on the
execution side.26 Analysing the content of s. 9, the Supreme Court has
held that the section has a positives as well as a negative aspect. The
positive aspect is to be found in the earlier part, which opens the door
widely, by entitling Civil Courts to entertain all suits of a civil nature.
The negative aspect is to be found in the latter half, which debars entry,
24. Government of Bangladesh, represented by Secretary, Housing and Settlement Bangladesh Secretariat &
others vs. ASM Firojuddin Bhuiyan [2001] 53 DLR 522. 25. Sankar Narayan Potti v. K Sreedevi (1998) 3 SCC 751, AIR 1998 SC 1808. 26. Bharvad Chotta Bhaga v. Bharvad Jagadahya AIR 1999 Guj 17.
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only if there is an express or implied bar.27 A court is said to have
jurisdiction of the subject-matter of a particular controversy if the court
has the authority to hear and decide causes of a class to which the
particular controversy relates and does not depend upon the merits of its
decision.28 The jurisdiction of the court is to be determined on the basis
of the allegation made in the plaint and does not depend upon the
defence taken in the written statement.29
Section 9 of the Code of Civil Procedure, 1908 provides that whenever a
question arises before the Civil Court, whether its jurisdiction is
excluded expressly or by necessary implication, the court feels naturally
inclined to consider whether the remedy afforded by an alternative
provision prescribed by a special statue is sufficient or adequate.30
Where a statute has given finality to the orders of the special tribunal,
the Civil Courts jurisdiction can be regarded as having been excluded if
there is an adequate remedy to do what the Civil Court would normally
do in a suit. In other words, even where finality is accorded to the orders
passed by the special tribunal, one will have to see whether such special
tribunal has the powers to grant reliefs which a Civil Court would
normally grant in a suit and if the answer is in the negative, it would be
difficult to imply or infer the exclusion of the Civil Courts jurisdiction.31
However, the finality clause in a statute is not a bar to the exercise of
constitutional power of judicial review of the High Court under Art. 226
of the Constitution.32
A party seeking to oust the jurisdiction of ordinary Civil Courts shall
establish its right to do so.33 And the onus of establishing the plea of bar
of jurisdiction is on the party setting up the plea.
The existence of a jurisdictional fact is the sine qua non or condition
precedent to the assumption of jurisdiction by a Court or Tribunal. The
fact or facts upon which the jurisdiction of a Court, a Tribunal or an
Authority depends can be said to be a jurisdictional fact. If the
jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction
to decide other issues. If such fact does not exist, it cannot act. By
erroneously assuming existence of a jurisdictional fact, a subordinate
Court or an inferior Tribunal cannot confer upon itself jurisdiction
which it otherwise does not possess.34”
Neither the reliefs prayed nor the statements made in the plaint are barred under any
law, thus not either expressly or impliedly barred by law. Therefore, the subject
matter of the suit before this Hon’ble Court is of civil nature which is not denied by
the learned court below itself; as such the same qualifies the ingredients of Section
7 of the CPC, Sections 5 and 42 of the SR Act. But the trial court below failed to
27. PMA Metropolitan v. Moran Mar Marthoma AIR 1995 SC 2001, 1995 Supp (4) SCC 286. 28. Pankaj Bhargav v. Mahender Nath (1991) 1 SCC 556, AIR 1991 SC 1233. 29. Abdulla Bin v. Galappa AIR 1985 SC 577, (1985) 2 SCC 54. 30. Vattickerukusu Village Panchayat v. Nori Venkatarama Deekshithulu (1991) 2 SCC Supp 288. 31. State of Tamil Nadu v. Ramalinga Wannigal Madam AIR 1986 SC 794, (1985) 4 SCC 10. 32. Srikant Kashinath Jihuri and ors v. Corpn of the City of Belgaum AIR 1995 SC 288, (1994) 6 SCC 572. 33. Suraj Narain v. Jamil Ahmed (1945) ILR 25 Pat 7; Srimath Jaganatha v. Kutumbarayudu (1916) ILR 39
Mad 21. 34. Carona Ltd v. M/S Parvathy AIR 2008 SC 187, (2007) 8 SCC 559.
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ascertain this point of law and very erroneously passed the impugned judgment
which is liable to be set aside for ends of justice.
8.0. Different from 17 BLC 2012 HCD 653
The case reported in 17 BLC 2012 HCD 653 (Al-Amin Bread & Biscuit Ltd vs
Bangladesh Bank) mainly highlighted three basic points which can be summarized
as follows –
(i) No declaration from Court is necessary for sending the name of the
defaulter in the CIB Report,
(ii) Whether Bank’s statement is correct or not cannot be decided in writ
jurisdiction,
(iii) Its not necessary to issue show-cause notice before sending the name in
the CIB Report.
The aforesaid case does not apply to the present case because the former is a writ
petition while the present is a civil suit. Moreso, the former does not create any bar
upon filing civil suit by any person whose name is reported/published in the CIB
Report. The former is in no way connected to civil suit. In short, there is no nexus
between the earlier decision and the present suit.
9.0. Gist of the submissions
➢ Rejection of plaint suo moto by the Court at the very initial stage, i.e. before
issuing of summons is unheard of in our legal arena.
➢ If institution of suit is done properly under Order IV of the Code of Civil
Procedure- 1908, the Court should issue summons upon the defendants under
Order V of that Code.
➢ Maintainability of the suit cannot be adjudicated under Order VII Rule 11 of the
Code. Because, Order VII Rule 11 has specified the provisions for which a
plaint can be rejected.
➢ If we writ provisions of Order XIV Rule 2, Order XV Rule 3 and Order XX
Rule 5 of the Code of Civil Procedure- 1908, it is clear that a preliminary issue
regarding law can be framed and adjudicated by the Court before adjudication of
other issues; but judgment should be delivered disposing of all issues together
and no suit can be adjudicated by piecemeal.
➢ Even a suit is barred by law, it does not prevent the Civil Court for examining
the acts/omission done by the defendants; because, each and every act is
examinable under judicial scrutiny.