TAJUNISSA Vs. VISHAL SHARMA

JUDGEMENT

(1.) Mr. Ravi Gputa, learned Senior Counsel for the Defendant No.3 submitted, at the outset of these proceedings, that this suit was liable to be rejected under Order VII Rule 1 1(d) of the Code of Civil Procedure, 1908 (CPC) and that, therefore, summons were not required to be issued.

(2.) Mr. Anupam Lal Das, learned Senior Counsel for the plaintiff advances two submissions, reacting to the submission of Mr. Gupta. His first submission is that Mr. Gupta does not have any right of audience at this stage, as the defendant, under the CPC, cannot be heard unless summons are issued to the defendant or the defendant has filed a caveat. As Mr. Das's submission was that this position flows from a reading of the CPC, the Court queried, to Mr. Das, regarding the provisions of the CPC on which he sought to place reliance to support the submission that the Court could not grant an audience to Mr. Ravi Gupta at this stage. Mr. Das cites, in his support, Ss. 26, 27, 148A and Order V Rule 1 of the CPC. These provisions, for ready reference, may be reproduced thus:

(3.) Mr. Das further submits that summons have necessarily to be issued by the Court in every case in which a suit is "duly instituted" and that all other objections to the maintainability of the suit would have to be relegated to a stage after the defendant responds to the summons, at which stage the defendant may raise objections regarding maintainability or other legitimate objections available to it. He submits, however, that, so long as the suit is "duly instituted", the Court has no option but to issue summons.