Selvaraj vs Koodankulam Nuclear Power Plant India Limited

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Judgment Reserved on : 22.02.2021

Judgment Pronounced on : 16.07.2021

CORAM: JUSTICE N.SESHASAYEE

CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020

1.Selvaraj .... Petitioner in CRP.(MD)No.915/2020 2.Revathi .... Petitioner in CRP.(MD)No.943/2020 3.Thaibabanu .... Petitioner in CRP.(MD)No.967/2020 4.A.Amutha .... Petitioner in CRP.(MD)No.991/2020 5.Ayyanar .... Petitioner in CRP.(MD)No.330/2020

Vs.

1.Koodankulam Nuclear Power Plant India Limited Represented through its Project Director Koodankulam Ramanathapuram Taluk Tirunelveli District. ... Sole Respondent in CRP.(MD)No.915/2020

2.Seethai Kasi ... 1st Respondent in CRP.(MD)No.943/2020 3.Sudhakar ... 2nd Respondent in CRP.(MD)No.943/2020

4.The State of Tamil Nadu Through its Thoothukudi District Collector Thoothukudi. ... 3rd Respondent in CRP.(MD)No.943/2020

5.The Tahsildar Thoothukudi Taluk, Thoothukudi. ... 4th Respondent in CRP.(MD)No.943/2020

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6.Shahul Proprietor of Kasim Textiles Textiles D.No.214, East Veli Street Puliyankulam, Silaiman Madurai – 625 012. ... 1st Respondent in CRP.(MD)No.967/2020

7.Sekar Proprietor of Anitha Weaving Mill D.No.145, F6 West Car Street Thiruchengode – 637 211 Namakkal District. ... 2nd Respondent in CRP.(MD)No.967/2020

8.Sivakumar Proprietor of Deiva Lakshmi Textiles D.No.DF499, Avinashi Road Vanchipalayam Tiruppur – 641 663. ... 3rd Respondent in CRP.(MD)No.967/2020

9.Arusamy Sivaraj Proprietor of Nidhie Weaving Mill D.No.389/2, Chettipalayam Road Palladam Tiruppur – 641 664. ... 4th Respondent in CRP.(MD)No.967/2020

10.Sekar Proprietor of Srijayam Knits D.No.2/1083, NVVB Layout Andipalayam Tiruppur – 641 687. ... 5th Respondent in CRP.(MD)No.967/2020

11.Thirupathy Proprietor of Suthan Textiles D.No.167, SIDCO, Kappalaur Madurai – 625 008. ... 6th Respondent in CRP.(MD)No.967/2020

12.Ramalingam Proprietor of Rani Textiles

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Plot No.525, APIC Growth Centre Kulapalli Village, Madipadu Region Ongal – 523 211 Prakasam District Andhra Pradesh State. ... 7th Respondent in CRP.(MD)No.967/2020

13.Karthik Proprietor of Rasi Vinayaga Mills D.No.2/121-17, Murugan Palayam Vanchipalayam Tiruppur – 641 663. ... 8th Respondent in CRP.(MD)No.967/2020

14.I.Murugan @ Agasthilingam ... 1st Respondent in CRP.(MD)No.991/2020

15.Usha Rani ... 2nd Respondent in CRP.(MD)No.991/2020

16.Meera ... 3rd Respondent in CRP.(MD)No.991/2020

17.Athilakshmi ... Sole Respondent in CRP.(MD)No.330/2020

Prayer in CRP(MD).No.915 of 2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, to direct the Sub Court, Vallioor to number the plaint in Un-numbered O.S.No.... of 2019 [Filing No.OS/867/2019 (CNR.No.TNTL070008492019)] on the file of the Sub Court, Vallioor.

Prayer in CRP(MD).No.943 of 2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, to direct the Principal District Judge, Thoothukudi, to take on file and number the plaint in Un-numbered

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O.S.No.... of 2020 pending in file No.2647/2020 dated 03.09.2020 on the file of the Principal District Judge, Thoothukudi, and to decide the same on merits in accordance with law within a time frame fixed by this Court, by allowing this Civil Revision Petition.

Prayer in CRP(MD).No.967 of 2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the Return order dated 20.11.2929 passed by the Principal District Munsif Court, Thirumangalam in unnumbered O.S.S.R.No.4611 of 2020, and to direct the Principal District Munsif Court, Thirumangalam to number the said Original Suit.

Prayer in CRP(MD).No.991 of 2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 27.08.2020 passed in Un-numbered Suit in C.F.No.129 of 2020 on the file of the District Munsif-cum-Judicial Magistrate Court , Bhoothapandy, by allowing this Civil Revision Petition.

Prayer in CRP(MD).No.330 of 2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 07.01.2020 passed by the District Munsif Court, Melur in unnumbered O.S.No..... of 2020 and to number the plaint within a time frame as fixed by this Court and decide the same on merits in accordance with law.

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For Petitioners : Mr.D.Nallathambi (in both CRP (MD) No.915 &991/2020)

Mr.G.Prabhu Rajadurai (in CRP (MD) No.943/2020)

Mr.R.Gowri Shankar (in CRP (MD) No.967/2020)

Mr.S.A.Ajmal Khan (in CRP (MD) No.330/2020)

Amicus Curiea Mr.V.Lakshminarayanan, Mr. Shankar Murali & Mr.J.Barathan

COMMON ORDER

1.1 This batch of cases and many more of like variety that oft frequent this

Court with, what has now become a familiar grievance and have a common

complaint:

➢ When a plaint is presented before the Registry on the Original Side of

the District Judiciary, the Registry while scrutinizing it for evaluating

its merit for registration, raises baffling if not mindless objections,

most of which may be relevant only for final adjudication and not for

registering the plaint. And these objections eventually bear the

signature of the judicial officer concerned and hence they become the

Court’s objections.

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➢ Secondly, that plaints are repeatedly returned for curing defects, with

the Registry/Court raising its objections in installments.

➢ That a plaint is not taken up for scrutiny for weeks or months, and is

neither taken on file, nor returned for weeks to months on end. (Even

in this batch there was a CRP(PD) 943/2020 which made a complaint

falling in this variety)

1.2 It requires no more than invoking the maxim ‘res ipsa loquitor’ to

explain the inconvenience which the Registry and Courts might be creating

for the litigants or their counsel. Are not such instances obstructive of right

to access justice? Does it not then reflect an element of apathy or plain

insensitivity in certain quarters of the District Judiciary? This Court

consciously avoids a tempting-drift to waste its efforts in a pointless

endeavour to fix the blame, as it realizes that there is a greater

responsibility and a marked need to provide the correctives.

2. Before embarking to deal with the larger issue, let the facts of each of the

cases in this batch that provided the cause for this Court to do what it

proposes to do be introduced:

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A. CRP(MD) 915 of 2020:

The grievance of the petitioner here is that his plaint was assigned a Diary

No OS.SR 867/2019, but has not been registered as a suit. The prayer in the

plaint is for recovery of a block of land measuring 2.44 acres in

Sy.No:218/2A plus a bore well and couple of buildings. The defendant

shown in the plaint was Koodankulam Atomic Energy India Ltd. The

pleaded cause of action for the suit is that while the lands adjacent to the

suit property were acquired for the purposes associated with the

Koodankulam Atomic Energy project, the suit property was not included in

the acquisition. It further states that part of S.No:218/2 was acquired, and on

acquisition the survey field for the acquired portion was sub-divided into

S.No:218/2B, whereas the portion not acquired was assigned S.No:218/2A.

However, while issuing patta to the defendant, S.No:218/2A was also

included. In the said circumstances, the petitioner had instituted

O.S.89/2015 seeking a declaration of his title to the property in Sy.

No.218/2A. However, there appeared to have crept an error in providing the

correct survey number. Therefore, I.A.2/2019 was filed to amend the plaint.

During the pendency of this petition, the petitioner was forcibly evicted

from Sy. No 218/2A and a compound wall too has been constructed. Hence,

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the petitioner had filed a suit under Sec.6 of the Specific Relief Act. On 21-

08-2019, the plaint was returned. The grounds of return are:

“1.How the suit against the land acquisition proceeding is respect of public project is maintainable in law?

2.As per the plaint records, a suit for declaration of title and permanent injunction was filed before the PDM, Valliyoor and pending in O.S.No.89/2015. Hence, how the suit between the same parties with regard to very same property is maintainable in law to be explored.

3.As per the plaint, annexed document No.7, patta, property is belonged to the defendant by way of land acquisition proceedings. Hence, how the suit is maintainable to be explored.

4.Clean copy to be filed.

Hence, returned. Time two months.”

The petitioner has answered each of these grounds. Now it was again

returned. The grounds are:

“1.Previous return endorsement dated 21.08.2015 is still holds good.

2.As per Section 6 of the Specific Relief Act, no suit under Section 6 of the Act, shall be brought against the ground [Section 6 (2) (b) of the Specific Relief Act]. Hence, the plaint is returned. Time two months.” Evidently the second ground mentioned in the second return was not

there in the first. This is now under challenge.

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B. CRP(MD) No.943 of 2020 :

In this case, the plaint presented on 31-08-2020, but, it was neither

registered nor returned for about two months.

C.CRP (MD) No: 991 of 2020:

In this case, petitioner had instituted O.S.201/2019 before the Principal

District Court, Kanyakumari at Nagercoil, for recovery of money based on a

promissory note coupled with an acknowledgement of debt. Subsequently,

the petitioner presented a plaint against the same defendant before the

Judicial Magistrate cum District Munsiff Court, Bhoothapandi, for a

declaratory decree that some six cheques issued by the petitioner/plaintiff

was not supported by consideration, and also for an ancillary relief of

prohibitory injunction that the defendant should be restrained from

encashing some six cheques issued by him (the plaintiff). This plaint was

returned on grounds of maintainability. Relying on Sec.41(b) of the Specific

Relief Act, the Court vide its speaking order dated 27-08-2020, had returned

the plaint on grounds of maintainability. This is under challenge, mainly on

the ground that the trial court should not have decided the suit even before

numbering it.

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D.CRP (MD) 967 of 2020:

The petitioner herein presented a plaint before the Principal District Munsif

Court, Thirumangalam, which was received by the Registry of the Court on

05-11-2020 in O.S.SR No4159 of 2020. The prayer sought in the suit was

for a bare injunction that the defendants be restrained from recovering

certain amounts borne of a commercial transaction by any means other than

by the due process of law. This plaint was returned for correcting some

formal defects. After curing those defects, the plaint was re-presented, but it

was now returned when the Court raised a maintainability issue since the

prayer was one under Sec 41(d) of the Specific Relief Act. The petitioner’s

counsel offered his explanation and re-presented it again. On 11-11-2020, it

was again returned, but now on the ground that the defects mentioned in the

earlier instance was not complied. Petitioner’s advocate had endorsed that

all defects are cured on the same day. But on 20-11-2020, the plaint was

again returned on the following grounds:

“(i) Since the prayer claimed is barred u/sec 41(d) of the Specific Relief Act, how this suit is maintainable?

(ii) Injunction relief can be claimed in respect of properties. How this injunction suit is maintainable as against the defendants in their personal

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capacity? Explain.”

This return has prompted the petitioner to approach this Court.

E. CRP (MD) 330 of 2020:

A plaint was presented seeking declaration of title to the suit property. The

cause of action for the suit is founded on the allegation that out of a plot of

9 cents, the middle three cents were allotted to the share of petitioner’s

grandfather in a partition, and that a patta was fraudulently obtained by the

allottee of the remaining 6 cents. Plaintiff has further alleged that the

defendant in the suit claims that he had purchased the entire 9 cents based

on a sale deed dated 29-01-1971 from the descendants of the allottee of the

6 cents, and therefore, pleaded that the sale deed is fraudulent. The learned

District Munsiff rejected the plaint Vide an elaborate 14 paged order. He

has reasoned that the suit is not maintainable under Order VII Rule 11(d)

CPC on the ground that the suit for declaration of the sale deed dated 29-01-

1971 as being invalid is barred by limitation, since the petitioner has not

given the date of his knowledge of the alleged fraud.

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A Prelude:

3. The grievances are what are stated in the opening paragraph. The

immediate consequence of these practices carries with it the grim

potentiality of defeating the very purpose of filing the suit, and putting

serious obstacles in the path of access to justice.

4. While the cause of action to bring an action at law belongs to the

plaintiff, the rights and the remedies attached to its violation belong to the

substantive law. The pursuit of justice however, goes through a procedural

process, and this is statutorily governed Vide a century old Civil Procedure

Code. Stricto senso, the procedural aspect of registering the plaint must be,

and at all times, ought to be uniform. If all those who are enjoined with the

responsibility of registering the plaint understand the procedure involved in

the same way, then there is little reason for its differential-application. Is

there then a differential understanding of the procedure in a wrong way?

5. Have some of our Courts become a guardian of any procedure that they

author, or guardian of the rights of the citizens? If these Courts believe that

they are there to uphold the rights, is it not then intriguing how the purpose

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will be achieved when litigants are denied even entry into the legal system?

Does all the investment which the Judicial Academy has been making for

updating and upgrading the level of legal awareness of the District Judiciary

yield only less than optimum results? Or, is there an attitudinal problem

with a section of our District Judiciary?

6.1 Here, there is a need to distinguish an erroneous order borne of right

approach, and the quality of approach adopted itself. Though this Court is

only expected to test the justifiability of the orders of the trial court in this

batch of revision petitions, since the cases falling under this genre generally

fall under the latter category – a product of wrong approach, it has become

imperative for this Court to expand the scope of its Order. This is essential

for bringing in uniformity in the practice, and to cut down on the

arbitrariness in scrutinizing the plaint for its registration.

6.2 Therefore, in the 113th year of the Code of Civil Procedure Code, 1908,

this Court, in its 159th year of its existence, has taken upon itself the

responsibility of providing a checklist for the Registry of the District

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Judiciary on what it may do, or refrain from doing while scrutinizing the

plaint. To declare this aspect of law is not just part of the judicial power of

this Court but is part of its constitutional duty under Article 227 of the

Constitution. Certainly not a moment of pride, but of pain and sombre

reflection.

7(a) To start with all these cases were listed on different dates, but were

consolidated to investigate the pathology of the malaise. A few Advocates,

who had logged on to the virtual Court, (for other cases where they have

been engaged) joined the issue and made a joint statement: that access to

justice in the original side finds its greatest obstacle at the Registry of the

District Judiciary. Of them Mr. V. Lakshminarayanan (from Chennai), Mr.

Murali Shankar (from Tiruchirappalli) and Mr. J. Bharathan (of Madurai)

deserve special mention. They were appointed as Amicus Curiae. This

Court records its appreciation for the assistance of the learned Advocates.

7(b) Mr. Lakshminarayanan collected some data from various northern

districts which come under the direct jurisdiction of the Principal seat of this

Court, whereas others presented the state of affairs in the districts that fall

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under the jurisdiction of this Bench. There is a grand unanimity in their

submissions. They argued that to have a plaint converted into a suit forms

the first of the ten chambers of Access to Justice (a la the movie 36

Chambers of Shaolin), and the process is least litigant friendly, and the

approach very often strikes an appalling discordance with the procedure.

8. The bedrock of our civil justice system rests on the maxim ‘Ubi jus ibi

remedium’. A legally enforceable right, when violated, or when faced with

a threat of violation is remediable in law. Section 9 of the Code is but a

statutory expression or a manifestation of this maxim, which has recognised

the right of any litigant to approach a civil court to seek a remedy in

vindication of violation to any civil right. In Ganga Bai v. Vijay Kumar

[(1974) 2 SCC 393], the Supreme Court declared it thus:

“15. ….There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. (emphasis supplied)

An adjudicatory mechanism for the redressal of the grievances of a citizen

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is an integral facet of the principle of access to justice which, the Supreme

Court in Anita Kushwaha v Pushap Sudan [(2016) 8 SCC 509], has

declared as a facet of right to life guaranteed under Article 21 of the

Constitution. The Court observed:

“One of the most fundamental requirements for providing to the citizens access to justice is to set up an adjudicatory mechanism whether described as a court, tribunal, commission or authority or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by the State or any one of its instrumentalities. In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, tribunal or authority may adopt for adjudication, must, in itself be just and fair and in keeping with the well-recognised principles of natural justice.”

9. The right belongs to the litigant and not to the Court. Its violation also

belongs to the realm beyond the domain of the Courts. In a litigation

situation, the Courts play their role (a) either to facilitate its settlement; or

(b) to adjudicate on the rights and violation complained of wherever a suit

defies the prospects of a settlement. However, the resolution of a dispute

either through a Court-initiated-process of settlement, or through a process

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of adjudication is achievable only if the litigant is given access to the

Courts. Here the trial Courts need to understand the dichotomy between its

adjudicatory role and the need to negotiate procedure in aid of its duty to

adjudicate. Scrutinizing a plaint for the purpose of registering it as a suit

belongs solely to the realm of procedure.

10. Thiru V. Lakshminarayan, in his submissions, laid emphasis in bringing

out the distinction between the adjudicatory jurisdiction of the Court and

the duty of the Court in aiding access to justice, and backed his submissions

with several authorities, which would be alluded to heretofore. He

submitted:

a) The process of converting a plaint into a suit is fundamentally part of

the administrative or ministerial act of the Court, as dictated by the

procedural law. No adjudication is involved, nor should it be involved

when a plaint is presented at the point of entry into the legal system.

Hence, during scrutiny of plaints for registration, the Courts should

not wear the cap which it might wear while engaged in a judicial act

of adjudication.

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b) Secondly, when a plaint is presented for its compliance with the

procedural law, the Courts can neither ignore the procedural

prescription, nor can they fashion their own procedural requirements

dehors the minimum requirements of the Code and add them.

Consequently, the Courts do not have any power to return the plaint

except under the circumstances set out under Order VII Rule 10 CPC.

He added:

● When a plaint, or, any original petition is presented, during

scrutiny, the Registry should not “act” as a defendant/ respondent,

and raise objections, which a defendant/respondent might take

after entering appearance.

● Matters pertaining to judicial adjudication, which is to mean, any

finding which the Court may be called upon to enter on the merits

of the cause of action cannot be advanced when the plaint is

merely taken up for scrutiny by the Registry-Court combine. For

convenience even a check list of formal defects, not indicating a

possible line of defense, nor requiring evidence in proof of the

cause of action, may be made available in order that procedural

consistency may be established across the State. This will also

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infuse an element of predictability for both the Advocates and the

litigant, and eschew arbitrariness, besides curbing the temptation

to engage in certain other unhealthy practices.

● The Registry, should not have power to return the plaint multiple

times, inventing newer grounds for each successive return. In

other words, a plaint or original petition may be returned only

once, and where anything is omitted to be done at the first

instance, the power of the Registry to return the plaint again shall

be foreclosed.

● When a plaint or an original petition is filed as an emergent case,

it is generally taken up for scrutiny on the same day. However,

when a plaint is not filed as an emergent case, they are taken up

for scrutiny without any outer time limit. An outer time-limit

must be prescribed.

● Issues impinging upon the right to sue, cause of action,

interpretation of law, genealogy of parties, relationship of parties,

rights and liabilities of parties etc., cannot be made grounds of

return.

● The Registry shall not insist that the Advocates/litigants to recast

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the reliefs. It is the exclusive domain of the Advocates/litigants,

and their freedom at the point of presenting the plaint or original

petition is absolute, and it is for the Court to grant it or deny it

after an adjudicatory process, but not at the stage when the plaint

is scrutinized for registration. Neither the Registry nor the Court

may direct what relief must be sought or how it must be framed.

● As to the valuation of the plaint for the purpose of Court fee, say

for instance, whether a suit must be valued under Sec.25(d) of the

Tamil Nadu Court Fee and Suit Valuation Act, or under Sec.40 of

the Act is essentially a judicial function and it cannot be delegated

to the Registry.

11.1 Concurring substantially with Mr. Lakshminarayanan, Mr. Shankar

Murali,also an Amicus Curiea, submitted that he differs from the former

only on the aspect of suit valuation and court fee. He submitted that under

Sec.12 of the T.N. Suit Valuation and Court Fee Act, 1955, the question

touching upon the payment of proper Court Fee on the plaint ought to be

decided prior to its registration and it cannot be done post registration of the

plaint as a suit. He lamented that notwithstanding the fact that under Order

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VII Rule 1 to 9 of the CPC, read with Sec12 of the T.N. Court Fees and Suit

Valuation Act, which make explicit the procedural requirements of what the

Registry ought to consider while scrutinizing a plaint, Registries across the

State engage themselves in generous breach of these provisions by

supplementing their own requirements.

11.2 Thiru.Bharathan (Amicus Curiea), for his part cataloged the particular

instances on the basis of the date he has collected, all of which fall under

any one of the categories indicated in paragraph 1.1.

12. The other learned counsel who appeared for the petitioners, besides

making specific submissions on their respective cases, have also listed

certain extra-statutory grounds on which plaints are returned. They include:

(a) Demanding the proof of any genealogy wherever the plaintiff has

detailed it; (b) Insisting on production of Original Title Deed where the

property is ancestral from time immemorial, or where the Original Title

Deeds are not in physical custody; (c) Insisting on an expert valuation report

for the subject matter of the suit to ascertain the valuation; (d) Forcing

corrections to the reliefs sought for etc.,

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The Discussion:

13. An aspect that echoed more during the hearing was the sentiment that

the Registries of several Courts in the District Judiciary behave more like a

defendant/respondent when they take up a plaint, or an original petition for

scrutiny. And, there is a feeble, yet adequately audible indication that the

registry of the District Judiciary across the State is arbitrary, and that its

procedure varies with the of the particular views of the Presiding Officer

and the Chief Ministerial Officer, no matter that the procedure statutorily

prescribed remain the same.

14. Order IV Rule 1 provides for institution of a suit. It reads:

1. Suit to be commenced by plaint

(1) Every suit shall be instituted by presenting a 1[plaint in duplicate to the

Court] or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and

VII, so far as they are applicable.

(3) The plaint shall not be deemed to by duly instituted unless it complies

with the requirements specified in sub-rules (1) and (2).

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Order VI inter alia states broadly what the pleadings in general shall con-

tain, and Order VII prescribes what a plaint in particular shall state. In the

context of registering the plaint, the concern raised is not what the plaint

shall contain, but how far the Court should filter the plaint for the extent of

its conformity with Order IV Rule 1. And, Order IV does not list the same.

15. Every right recognized in law, when violated, requires to be remedied.

But between the right-violation and its vindication, a suitor must travel a

grueling journey though the labyrinthine procedure. This journey is

inescapable and unavoidable, yet it should not be rendered harder than a

hunt for ‘Mackenna’s Gold.’ The Courts, being sentinels on the qui vive,

should not risk missing the wood for the trees. Any belief by any Judge that

‘my job is to adjudicate, and hence I will adjudicate whatever that is

brought before me’, is a horrendous misconception in understanding the

role of the Court.

16. This now brings in the need to differentiate a judicial act from an

administrative act that the Courts perform, something on which Thiru.

Lakshminarayanan, Advocate laid considerable emphasis. According to

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him, a proper grounding on this distinction is indispensable for handling the

rights-violation situation governed by the substantive law, and registering a

plaint governed by the procedural law.

Registration of Plaint – A Ministerial Act:

17. One of the early cases, in Regina (John M’Evoy) Vs Dublin

Corporation, [(1872) 2 L.R. Irish 371], May C.J., declared what qualifies

for an act of the Court to be termed as a judicial act. The learned Chief

Justice observed:

"The term "judicial" does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances and imposing liability or affecting the rights of others."

In Royal Aquarium and Summer and Winter Garden Society Ltd. v.

Parkinson [(1892 (1) QB 431], Lopes, LJ observed :

"…The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in Court or to administrative duties which need not be performed in court, but in

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respect of which it is necessary to bring to bear a judicial mind, that is, a mind to determine what is fair and just in respect of the matters under consideration." (emphasis supplied)

In Attorney General of Gambia v. Pierre Sarr N’ Jie[(1961) A.C.

617(633)], the Judicial Committee of the Privy Council decided that if the

order is capable of being appealed against, then it should be treated as an

exercise of Judicial Power.In R.M. Seshadri vs Second Addl. Income-Tax

Officer, [AIR 1954 Mad 806 (DB)= [1954] 25 I.T.R. 400 (Mad)], while

differentiating a Tribunal and a Court, this Court held:

“9. ….. The decisions of Courts are arrived at usually by the application of objective standards which are fixed, i.e., in accordance with the principles of procedure and the mode of taking evidence in the manner laid down by the Evidence Act”.(emphasis supplied)

18. A rule of thumb that distinguishes the adjudicatory/judicial act of the

court from its administrative/ministerial act is that the former always

requires an application of judicial mind where the Court is required to

understand the contents of the plaint on a plane of law, whereas the

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administrative/ministerial act of scrutinizing the plaint does not require any

elaborate distillation of fact-finding. For some of the judicial

pronouncements which reflect the idea that numbering a plaint or an

application is only a ministerial act, see: P. Surendran Vs State by

Inspector of Police [(2019) 9 SCC 154 : 2019SCC Online SC 507], K.

Venkatesan Vs E. Hemantharaj [CDJ 2016MHC 5629 : 2016 SCCOnline

9462], G. V. Vanitha & Others Vs K. Dhanasekaran & Others [2016 (5)

CTC 329], M. Ramachandran Vs M. Palani [CRP(PD)2207 of 2016,

dated 28-11-2018], M. Rajendran Vs Goverment of India [(2020) 5 MLJ

766], and Srinivasan alias Balaji Vs Jayalakshmi Vs Vidhya [2001-2-

LW 527].

Return of Plaint - Role of the Court:

19. There is a clear distinction in law between “presentation of a plaint”

and “institution of a suit” and this was brought out by a Division Bench of

this Court in Olympic Cards Limited Vs Standard Chartered Bank, [(2013)

1 LW 385], wherein it has observed as follows:

“Rule (1) of Order IV of C.P.C. provided for institution of suits. Rules 3 and 4 of Order IV contains the statutory prescription that the

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plaint must comply with the essential requirements of a valid plaint and then only the process of filing would culminate in the registration of a suit. Rule 21 of Civil Rules of Practice contains the basic difference between presentation and institution. There is no dispute that the date of filing the plaint would be counted for the purpose of limitation. However, that does not mean that the suit was validly instituted by filing the plaint. The plaint, which does not comply with the rules contained in Order VI and VII, is not a valid plaint. The Court will initially give a Diary Number indicating the presentation of suit. In case the plaint is returned, it would remain as a “returned plaint” and not a “returned “suit”. The act of numbering the plaint and inclusion in the Register of Suits alone would constitute the institution of suit. The stages prior to the registration of suit are all preliminary in nature. The return of plaint before registration is for the purpose of complying with certain defects pointed out by the Court. The further procedure after admitting of the plaint is indicated in Rule 9 of Order VII. This provision shows that the Court would issue summons to the parties after admitting the plaint and registering the suit. Thereafter only the defendants are coming on record, exception being their appearance by lodging caveat. Even after admitting the plaint, the Court can return the plaint on the ground of jurisdiction under Rule 10 of Order VII of C.P.C. The fact that the plaintiff/petitioner served the defendant/respondent the copies of plaint/petitions before filing the suit/petition would not amount to institution of suit/filing petition. It is only when the Court admits the plaint, register it and enter it in the suit register, it can be said that the suit is validly instituted.”

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The procedure involved in vetting a plaint for numbering in the pre-registra-

tion stage is, in terms of the above passage, must be considered only as a

preliminary stage. And, for curing defects at that stage a plaint can be re-

turned and this is part of the activities of the preliminary stage. The point

however, is how far can the Court/Registry stretch the process for vetting

the plaint for defects during the preliminary stage? Is it then permissible for

the Court to employ all or any of the tools it has in its forensic kit which

may find utility only during its adjudicatory process – the judicial act, in

the preliminary stage of vetting the plaint for registration? In Fathima Vs

Rahamatullah & Others [2021(1) CTC 499], this Court had an occasion to

observe that Courts are doctors of bleeding rights. Would it be appropriate

for a doctor to decide on the course of treatment or to refuse treatment even

before a patient registers him/her as a patient? This will apply in equal mea-

sure to Courts and their Registries while scrutinizing the plaint for its reg-

istration as a suit.

20. When the Code has set out the parameters, no Court shall overstep the

procedural prescription. After all, law of procedure is a handmaid of

justice, and a rule book of fairness with inherent flexibility and elasticity. Its

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object is to aid the furtherance of justice and not to impede it. (See:

P.Suresh Vs R. Rangasamy and others [2021(1) CTC 320]. Substantive

rights are building blocks and the procedure may be understood as masonry.

A bad handling of the masonry has the ability to spoil the construction,

irrespective of the quality of materials available. Therefore, it now depends

a lot on how a judge chooses to handle the procedure. The choice before

the Court are just two: (a) serving the cause of justice according to

procedure; and (b) serving the procedure.

Understanding the Procedure:

21. As outlined earlier, though Order IV Rule 1 deals with institution of

suit, it does not say no more than declaring that the plaint shall conform to

Order VI and Order VII to the extent required. And, it has been noted that

numbering a plaint is a ministerial act performed at the preliminary stage

before registering a plaint.

22. Turning to procedure per se, the Code chiefly provides only two

provisions: One under Order VII Rule 10 for return of a plaint for want of

pecuniary or territorial jurisdiction, and the other is Rule 11 which provides

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for rejection of plaint on certain grounds. In Madiraju Venkata Ramana

Raju v. Peddireddigari Ramachandra Reddy, [(2018) 14 SCC 1], the

Supreme Court clarified this point when it observed

“24. Ordinarily, an application for rejection of election petition in limine, purportedly under Order 7 Rule 11 for non-disclosure of cause of action, ought to proceed at the threshold. For, it has to be considered only on the basis of institutional defects in the election petition in reference to the grounds specified in clauses (a) to (f) of Rule 11. Indeed, non-disclosure of cause of action is covered by clause (a) therein. Concededly, Order 7 CPC generally deals with the institution of a plaint. It delineates the requirements regarding the particulars to be contained in the plaint, relief to be specifically stated, for relief to be founded on separate grounds, procedure on admitting plaint, and includes return of plaint. The rejection of plaint follows the procedure on admitting plaint or even before admitting the same, if the court on presentation of the plaint is of the view that the same does not fulfil the statutory and institutional requirements referred to in clauses (a) to (f) of Rule 11. The power bestowed in the court in terms of Rule 11 may also be exercised by the court on a formal application moved by the defendant after being served with the summons to appear before the Court. Be that as it may, the application under Order 7 Rule 11 deserves consideration at the threshold.” (emphasis supplied)

This would now imply that the trial Court has the power to reject the plaint

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even at the pre-registration stage. Still, not all the limbs of Order VII Rule

11 of the Code can be exercised by the Court on its own motion at a stage

prior to the numbering/registration of a plaint. For instance, a plaint can be

rejected under Order VII Rule 11(f) if the plaintiff fails to comply with Or-

der VII Rule 9 which requires him to file adequate copies of the plaint as

there are defendants within 7 days from the date of ordering summons on

the defendant. The order directing issuance of summons is obviously, as

stated in Order VII Rule 9, can be made only after the plaint is admitted and

registered as a suit. Therefore, notwithstanding the availability of the power

to reject the plaint before its numbering, still rejection under Order VII

Rule 11(f) cannot apply at that stage.

23. The dictum in Madiraju Venkata Ramana Raju case, [(2018) 14 SCC

1] however, does not deal with how the Courts ought to exercise the power

of rejection of plaint at the preliminary/preregistration stage, or what may

weigh with it at that stage when the courts engage only in the ministerial act

of scrutinizing the plaint. Now, it is one thing for the Court to reject the

plaint at the instance of the defendant upon registration of the suit, and it is

another thing for the court to reject the plaint at the preliminary stage during

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the preregistration stage. In Hindustan Petroleum Corporation v C.M

Hariraj [2002-3-LW 476], this Court held that the trial court, at the

numbering stage, cannot test the correctness of the existence or otherwise of

a cause of action and reject a plaint under Order VII Rule 11(a) even prior

to its numbering. The Court observed:

“The question whether there is any cause of action or not can be ultimately decided only after issue of notice to the other side and the Court cannot act as a spokesman of the defendants.”

Given the scheme of the Code, this observation stands to reason, since a de-

fendant has an option to admit the allegations in the plaint either under Or-

der X, or in course any procedure contemplated under Sec.89 CPC or when

notice to admit is served on him under Order XII, or while answering any

interrogatories served on him under Order XI Rule 1, or even during trial.

The Court and its Registry need to be aware about this possibility, and may

not hold a brief for the defendant at the preliminary stage when it is expect-

ed to discharge only the ministerial function of scrutinizing the plaint for its

merit for registering it as a suit.

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24.1 Therefore, it may be stated as a general rule that the Courts, at the pre-

registration stage of the plaint, should confine the scope of its scrutiny to

the barest minimum which a ministerial act may require. It does not call for

any serious application of mind because the defendant is still not before the

Court, and with no evidence before it there is nothing to adjudicate either.

24.2 When in doubt, it may be advisable for the Court to register the plaint,

which only enables procedural flexibility in registering a plaint without de-

ciding on the right of the plaintiff. The anxiety of the Code to preserve a

suit can be gathered from the fact that it treats only an order rejecting a

plaint as a decree, but not an order dismissing a prayer for its rejection.

Exceptions:

25. There is however, one exception: Deciding if the suit is maintainable at

the preliminary stage while numbering the suit. This is required under Or-

der VII Rule 1(f). And it pertains to a statement on jurisdiction. Jurisdic-

tion, in the context, has to be understood as (a) inherent jurisdiction of the

Court to take cognizance of a dispute brought before it through a plaint; (b)

territorial and pecuniary jurisdiction; (c) absence of cause of action; and (d)

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limitation. Least complicated of them is ascertaining territorial and pecu-

niary jurisdiction and it does not require a discussion.

26. Sec.9 of the CPC makes it obligatory for a civil court to take cog-

nizance of a suit of a civil nature unless its jurisdiction is barred either ex-

pressly or by necessary implication. There are two parts to it: First there

must be a suit of civil nature – a suit where the existence of an enforceable

legal right and its violation are alleged; and Second, the inherent jurisdic-

tion of the Court to take cognizance of the same. The former deals with the

cause for the action which is presented before the court in a plaint, and the

latter concerns with the availability of the inherent jurisdiction in the Court

to take cognizance of the cause of action so presented before it.

(a) Cause of action:

➢ It belongs to the plaintiff. The Court/Registry cannot investigate the

merit of the cause of action at the stage of numbering the plaint or

adequacy of pleadings. It has to merely presume and accept the

pleadings as they are at that stage. This is however, subject to one

exception: where the allegation in the plaint does not constitute a

legally recognised right, then the Court may reject the plaint even at

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the preliminary stage: To illustrate, if the plaintiff pleads that she

was married prior to the date of coming into force of Sec.29-A of the

Hindu Succession Act (inserted Vide a Tamil Nadu Amendment

which elevated all unmarried daughters as on the date on which the

provision became operational as coparceners), and still seeks a right

as a coparcener under the said provision, then the Court may reject

the plaint. If however, she does not state anything about the date of

her marriage, at the stage of numbering plaint, it is not the job of the

Registry to insist on it, since it will then part take the character of an

adjudication; nor can it insist on any document evidencing marriage,

for the Court or the Registry is not empowered to hold a trial at the

preliminary stage, but are only required to verify if the check-list to

be provided in the tabulation in paragraph 31 below.

(b) Exclusion of civil court jurisdiction:

➢ Order 7 Rule 11 (d) empowers the Court to reject a plaint where it

appears from the statement in the plaint that it is barred by any law.

The power to reject the plaint and the scope of objections touching

upon the maintainability of the suit at the stage of numbering requires

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careful delineation. Issues of maintainability may arise where the

jurisdiction of a civil court is expressly or impliedly barred by any

law. An illustrative case is the decision in V. Vijayakumar v M.

Murugadoss [(2014) (4) CTC 266], where this Court upheld the order

of the trial court rejecting the plaint without numbering it, on the

ground that on the pleaded cause of action, its jurisdiction was

impliedly barred by the provisions of the Industrial Disputes Act,

1947. In this category, the plenary jurisdiction of the Civil Court

under Section 9 is ousted, and the Court would, therefore, have no

jurisdiction to entertain the presentation of the plaint let alone

numbering and admitting it. To register a suit by numbering and

entering it in the Register of suits maintained under Order IV of the

Code would fly in the face of such statutory prohibition. Courts need

to look to the relief sought, and should satisfy itself if it has inherent

jurisdiction to grant the relief, or if it is statutorily barred from

exercising its jurisdiction.

➢ Here, the Courts have to be utterly careful in reading the plaint

wholly and understand what it conveys. In the case involved in

CRP(MD) 915 of 2020 now before this Court, the plaintiff pleads that

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out of a larger block of land, a portion was acquired for purposes

associated with Koodankulam Atomic power project, that the other

portion is with him, that portion which was acquired and the one

which was not acquired underwent a survey sub-division, and has

sought a relief as regards the portion not acquired. With zero

application of mind, the learned Munsiff has returned the plaint inter

alia on the ground that the suit was not maintainable since the matter

relates to land acquisition. How unfortunate that the learned Judge

did not even consider it necessary to read the plaint and understand

what it conveys?

➢ In the context of the power to reject the plaint before its registration

as a suit, an aspect that haunts the exclusion of jurisdiction is the bar

to grant a certain relief. The cases falling under the category of bar of

jurisdiction needs to be clearly demarcated from cases where there

exists no statutory embargo for the institution of the suit but where

the reliefs claimed may not pass legal muster. Here, the Court needs

to bear in mind that the right to have access to a Court and to initiate

a legal proceeding is one thing, and the entitlement of the suitor to a

particular relief is quite another. Maintainability at the stage of

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numbering has nothing to do with whether the plaintiff is or is not

entitled to a particular relief which cannot be decided at that stage.

For instance, a decision on whether on the basis of pleaded facts, a

contract cannot be enforced in view of the bar under Section 14 of the

Specific Relief Act or that the relief sought for is hit by Section 41 of

the Specific Relief Act cannot be determined before the suit is

numbered and instituted. (The case involved in CRP(MD) 991 of

2020 is an example) Hence, the appropriateness or otherwise of the

relief(s) claimed cannot be a matter for legal scrutiny at the stage of

numbering.

(c) Limitation:

➢ Of a cognate variety are cases where on the pleaded cause of action,

the relief appears to be barred by limitation. But limitation is

generally considered as a mixed question of law and fact. The issue

here is whether the question of limitation should be probed at the

stage of numbering. Being a mixed question of law and fact, it is

appropriate that the issue on limitation is better probed at the stage of

trial. However, the Supreme Court has clarified that where there is a

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clear bar, the Court would be justified in exercising its powers under

Order 7 Rule 11 [See: Dahiben v Arvindbhai Kalyanji Bhanusali,

[(2020) 7 SCC 366]. Even in such extreme cases, the ideal course is

to number the suit, and dismiss it under Section 3 of the Limitation

Act even before admitting the same and issuing summons to the

plaintiff, as was observed by S. Padmanabhan, J in Craft Centre v

The Koncherry Coir Factory (AIR 1991 Kerala 83), with which this

Court respectfully concurs.

Valuation

27. This is another aspect that feeds the Court or its registry with endless

opportunities to return the plaint. Valuation of a suit is covered under Order

VII Rule 11 (b) and (c) and they provide for rejection of the plaint on the

ground of undervaluation, and a consequent failure to correct the valuation

in the plaint and/or where the plaint is insufficiently stamped with the

requisite stamp paper, and the plaintiff does not make good the deficiency

within the time fixed by the Court. Here the Court is required to bear in

mind that at the stage of numbering the plaint, it is only required to go by

the averments in the plaint, unless it has objective materials within the plaint

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to indicate that the suit must be differently valued. The mandate of Section

12(1) of the Tamil Nadu Court Fees and Suit Valuation Act which requires

the Court to decide on the proper court fee, prior to registration of the plaint,

based on the “plaint materials and allegations” and the accompanying

valuation statement (under Section 10). If it is subsequently found at the

instance of the defendant that the plaint is undervalued, the Court can

always frame a preliminary issue to that effect under Section 12 (2) of the

Tamil Nadu Court Fees and Suit Valuation Act, 1955, (See Divakrupamani

v Sakuntala Devi, (2000) 2 ALT 275(DB), Chithra Ramalingam v

Sridharane, 2010-3-LW 793). And, as and when the defendant makes his

objection to valuation, the Court may decide the issue even as a preliminary

issue. But that would be at a later stage and hence registering the suit

cannot be halted on this ground. See: S.RM. AR. S. SP. Sathappa Chettiar

v. S. RM. AR. RM. Ramanathan Chettiar [1958 SCR 1024 : AIR 1958 SC

245] ; Tara Devi v. Sri Thakur Radha Krishna Maharaj [(1987) 4 SCC

69 at page 70]; Commercial Aviation and Travel Co. v. Vimla Pannalal

[(1988) 3 SCC 423 (427)].

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28. As to what is the procedure to be followed when the plaint is found to be

undervalued at the stage of presentation, a Division Bench of this Court in

K. Natarajan v P.K Rajasekaran [2003 3 LW 803] has inter alia set out

authoritatively:

“(3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays).

(4) If the suit is presented on the last date of limitation affixing less Court fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court fee”.

Summing up

29. To sum up, the Court may reject the plaint before numbering and

entering it in the Register of Suits, if from a reading of the plaint, it is seen

that the suit is barred by any law, or if it suffers from any procedural

infirmity, adumbrated supra. The Court, at that stage, cannot and is not

expected to conduct a roving enquiry into the merits of the matter by testing

the correctness of the plaint- averments even prior to its institution.

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30. In S. Parameswari v. Denis Lourdusamy, [(2011) 5 CTC 742], this

Court had held that after one return, the Court should post the matter in

open Court, and invited arguments of the counsel on the question of

maintainability and pass a judicial order. If the objection is upheld, the

aggrieved party could work out his/her rights.In Muthuganesah v.

Thillaimani, [2016- 2- LW 340], this Court had pointed out:

“3.The court, while admitting the plaint, can scrutinise the other aspects, namely the cause of action, valuation, payment of court fee, jurisdiction and limitation. The court can also verify whether the plaint has been filed in the proper form and whether the necessary requirements of plaint have been complied with. The question as to whether any other person should have been made a party is outside the purview of the scrutiny of the trial court at the time of admitting the plaint. The above said aspects are with reference to the merits of the return made by the trial court.

4. Once certain defects are pointed out by the court and the plaint is returned and the plaintiff or plaintiffs, re-present the same stating that the plaint has been properly prepared and filed and asking the court to hear regarding the necessity to comply with the returns made by the court, the court can return the plaint provided its view that the compliance with the returns are mandatory and it is conceded by the plaintiff. If the plaintiff makes it clear that he is not prepared to

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comply with the returns and the plaint as filed by him should be taken on file, the trial court should reject the plaint rather than returning the plaint stating the very same reason.”

This Court only adds a rider to it: In all cases where the Court chooses to

reject the plaint for not curing the defects mentioned (which may include the

issue on exclusion of jurisdiction) it is necessary for the Court to follow the

dictum in S. Parameswari v. Denis Lourdusamy, [(2011) 5 CTC 742] and

post the matter before Court, with or without the request of the plaintiff or

the counsel concerned, and hear them. The duty to hear before a decision is

made constitutes the soul of procedural fairness inbuilt in the Civil Proce-

dure Code, and cannot be compromised.

31. Now, to facilitate the process of scrutiny of plaint at the preliminary,

preregistration stage in the manner herein above stated, this Court tabulate

the same below:

Heads Permissible during Not permissible scrutiny of plaint Cause title and form of Yes. Can be verified if pleading there is a substantial (Order VI Rule 3) compliance of Appendix A.

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Heads Permissible during Not permissible scrutiny of plaint

Parties to suitYes. Required to the extent required, and if the Order VII Rule 1 (a) to suit is laid in a

(b) and Rule 4 representative capacity.

➢Sufficiency or adequacy of pleading cannot be gone into. Hence grounds Yes. Only to the extent of of fraud as in Order VI Maintainability ascertaining if the Rule 4 CPC cannot be (cause of action) plaintiff has a legally insisted.

Sec.9 & recongised or enforceable Order VII Rule 1(e) right on a plain reading ➢Proof of any of the of the plaint, and no allegations in the plaint more. should not be sought.

➢Merits of the matter or correctness of the pleadings cannot be gone into.

➢If the inherent jurisdiction of the Court is barred in granting the relief sought by any statute. ➢Caution must be exercised before returning a plaint. The entire plaint, the cause of Maintainability action and the relief (Jurisdiction) sought must be Sec.9 CPC understood as are stated or disclosed in the plaint alone need to be considered.

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Heads Permissible during Not permissible scrutiny of plaint ➢The statutory provision barring the institution of the civil suit or excluding the civil court’s inherent jurisdiction to take cognizance of the civil dispute must be strictly under stood.

Yes. Where a suit is ex facie barred by limitation. Newer or clarificatory material or proof of any Only the allegation in the fact pertaining to plaint should be the basis. limitation should not be Maintainability However, where the insisted. (Limitation) plaintiff pleads exemption from the law of limitation under Order VII Rule 6, this should be left to be tested post registration of the suit at the appropriate stage.

Maintainability Territorial and Pecuniary jurisdiction Order Sec.15 to 21 r/w Order VII Rule 1(f) Yes.

Money suits If precise amount is stated Order VII Rule 2 However, sufficiency of the description cannot be gone into.

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CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020

Heads Permissible during Not permissible scrutiny of plaint Again, if there is any variance of extent or boundary description with any title deed, even that may be formally notified Description of Property Yes for a possible Order VII Rule 3 typographical or clerical mistake, but if any explanation is offered justifying the extent stated, the plaint has to be registered. This is because, looking for proof and correctness of pleadings is not contemplated at the stage when the suit is registered.

Appropriateness or suitability of the relief sought cannot be gone into. This is not Court’s job. Seeking the relief is the prerogative of the plaintiff. Relief Yes, but limited to Order VII Rule 7 and 8 ascertaining if a relief at all is sought The fact that the Court may not grant it ultimately is a matter for adjudication, and is part of its judicial act and not part of its ministerial act of numbering the plaint. [See AIR 1942 Mad 446]

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CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020

Heads Permissible during Not permissible scrutiny of plaint

Yes. But the basis for the the valuation must be as stated by the plaintiff.

If any objection as to valuation must be done, Proof of value of subject Valuation and court fee then the defendant can matter of the suit such as always raise it during the expert’s valuation report first hearing under cannot be insisted. Sec.12(2) of the Tamil Nadu Court Fee & Suit Valuation Act, 1955

If enclosed can be verified Production of the with the list provided in documents cannot be the plaint insisted.

It needs to be realised that, given the level of poverty and illiteracy in this country it cannot be expected that every one Documents will possess all the documents all the time, anticipating the possibility of laying a suit 24 x 7. No law compels any person to possess all the documents all the time either. A cause of action for the suit invariably arises at a time convenient to the defendant, but it is the plaintiff who has to

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Heads Permissible during Not permissible scrutiny of plaint approach the Court to protect his/her right. All that the plaintiff therefore needs is only a cause of action and not proof of it when he enters the court-

system.

This apart After all under Order VII Rule 14(3) Documents CPC documents, including title documents can be produced subsequently.

Production of documents may be relevant for considering the granting of interim relief, but is not mandatory for numbering the suit.

Yes Signing the plaint Order VI Rule 14

Verification of plaint Order VI Rule 15 Yes

1. Copy of plaint and affidavit. 2. Vakalath. 3.Any application for leave to sue

4. Process along with

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CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020

Heads Permissible during Not permissible scrutiny of plaint copies of plaint.(Plaint cannot be returned for not Accompanying papers providing it since under Order VII Rule 9, they have to be provided only after the suit is numbered and the Court orders summons to the defendant)

5.Any other applications with affidavit Any formal typographical or clerical error apparent on the face.

Others Any doubt as to pecuniary or territorial jurisdiction. This is consistent with Order VII Rule 1(a) CPC

Related Aspects:

32.1 Where the plaint is sought to be rejected on any of the grounds

provided under Order VII Rule 11 even during the pre- registration stage,

the matter must be posted before the open court, and the plaintiff or his/her

counsel must be heard in the matter.

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32.2 For curing any of the permissible defects, no court shall return the

plaint more than once. This has been deprecated by this Court even in S.

Parameswari v. Denis Lourdusamy, [(2011) 5 CTC 742] referred to above.

In other words, returning the plaint multiple times on multiple grounds is a

sin in procedure and the Court/Registry needs to become adequately aware

about it. In spite of the fact that the decision in S. Parameswari’s case was

pronouced a decade ago, even in this batch of cases this Court has witnessed

that some of our Courts and their registry continue to flout it.

32.3 This apart, in all cases where the plaint is presented, a decision as to

numbering in the manner indicated in the tabulation provided in paragraph

31 shall be taken not later than three working days (excluding the date of

presentation and any intervening holidays).

33. The next aspect pertains to the compliance part of the parameters

hereinabove declared. This must be administratively decided by the High

Court. The State Judicial Academy may also spare its attention in these

aspects.

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34. Before parting with this case, this Court wishes to remind the District

Judiciary that any Civil Revision Petitions arising out of a pending case

[titled CRP (PD)] fundamentally challenges a procedural error. The number

of instances this Court chooses to interfere with any order so challenged is

the measure of the quality of our District Judiciary in handling procedure.

An effective District Judiciary with a right feel for procedural law,

therefore, is of enormous support to this Court, as it may reduce both the

inflow of, what this Court may term as avoidable litigation, and the

instances it may have to interfere with the orders under challenge before it.

Over to the CRPs:

35.Turing to the merits of the cases in this batch, the grounds of return are

already outlined in paragraph 2 (A) to (E), supra and the views of this Court

are set out in the table below.

CRP (MD)No Views of the Court Here the suit was laid on the ground that the suit property was not acquired. But at the first instance, the plaint was returned on the ground as if

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CRP (MD)No Views of the Court the challenge was to the land acquisition. Secondly, the suit is laid under Sec.6 of the Specific Relief Act, where recovery of possession can be sought without establishing 915 of 2020 title. The distinction is well brought out in Sec.6(4). Third ground was that suit is not maintainable since under Sec.6(2) of the Specific Relief Act, no suit is maintainable against the Government.

Here, the Court went in wrong in presuming that Government and its Companies are the same.To conclude the trial Court got all its points wrong.

Here the suit was laid for a declaration to declare that few cheques issued by the plaintiff to the defendant are not supported by consideration. It is a suit for negative declaration to negate the presumption under Sec.118(a) 991 of 2020 of the Negotiable Instruments Act. There was another prayer for a prohibitory injunction that the defendant should be restrained from encashing these cheques. The Court returned the plaint as it sensed a bar under Sec41(b) of the Specific Relief Act.

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CRP (MD)No Views of the Court Sec.41(b) provides that no injunction shall be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.It only means that injunction may not be granted from instituting or prosecuting a suit before the higher Court.

A plain reading the plaint indicates that the plaintiff has instituted another suit for recovery of money in 991 of 2020 O.S.201/2019 before the Principal District court, Nagercoil, against the same defendant, and the defendant is not stated to have filed any suit for realisation of amounts under the cheques involved in the suit.

The trial court appears to have lost its way when it overlooked the fact that the plaintiff’s primary relief is for declaration. Secondly, bar under Sec.41(b) operates only against the Court, and it does not raise any maintainability issue. In any event, the return falls foul of the parameters set out in paragraph 31, supra, and must, therefore, be set aside.

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CRP (MD)No Views of the Court Here the prayer is for a prohibitory injunction that the plaintiff should not be harassed in the matter of realisation of debts by the defendant. Court says that injunction is available only against the property.

What the Court has missed is that a prohibitory injunction is available to prevent an injury to a right. Law speaks only of right, and not of property.

Sec.38 of the Specific Relief Act merely speaks of a 967 of 2020 potential breach of a legal obligation. Sec.38(3) of the Act is more illustrative and not exhaustive.

This apart another ground under which the Court has returned the plaint further under Sec.41(d) of the Act.

This provision only restrains the court from granting injunction that would stifle prosecution. The plaintiff only seeks that he should not be extra-legally harassed by the defendant, and he does not whisper anything about any resort to lawful means for recovery of money by the defendant. The Court appears to have read too much in the plaint and the prayer, where

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CRP (MD)No Views of the Court there is none.

Here, the plaintiff seeks declaration of title, in which a validity of a certain sale deed dated in 1971 that presumably deals with the suit property on the allegation that the vendor thereunder did not have title to the same, and that the said 330 of 2020 sale is a fraudulent sale.

Significantly, there is no prayer to declare that the said sale deed was fraudulent.

But the Court has returned the plaint on the ground that the plaintiff has not given the date of his knowledge about the alleged fraud. In the context of the prayer, it is hard to fathom how this fact is relevant.

Conclusion:

36. 1 This Court finds that in all these cases, the concerned court(s) have

conducted mini-trials at the stage of numbering the suit which is, ex-facie,

inconsistent with the parameters set out, supra. Consequently,

CRP(MD)Nos.915, 967, 991 and 330 of 2020 are allowed and the orders

under challenge are set aside. The respective trial courts shall now number

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the plaint before it and proceed to dispose the suit(s) in accordance with

law.

36.2 So far as CRP(MD) 943 of 2020 is concerned, here the grievance was

that the Court concerned neither register the case nor return the plaint for

curing defects for close to two months since the presentation of the plaint.

This Court therefore, sought an explanation from the concerned Court, and

it was informed that the plaint was registered as a suit. Hence nothing

survived in this case and is closed. No costs.

37.The Registry is directed to return the respective original plaint to the

petitioners in CRP(MD)Nos.915, 967, 991 and 330 of 2020.

16.07.2021

Tsg

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To

1.The President Board of Governors, Tamilnadu State Judicial Academy.

2.The Sub Court, Vallioor.

3.The Principal District Court, Thoothukudi.

4.The Principal District Munsif Court, Thirumangalam.

5.The District Munsif-cum-Judicial Magistrate Court, Bhoothapandy.

6.The District Munsif Court, Melur.

7.The District Collector, Thoothukudi District.

8.The Tahsildar Thoothukudi Taluk, Thoothukudi.

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N.SESHASAYEE, J.,

Tsg

CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020

16.07.2021

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