WASUDHIR FOUNDATION Vs. C LAL AND SONS

JUDGEMENT

(1.) Is Order 6 rule 17 of the Code of Civil procedure reshricted or controlled by Order 7 rule 11 ? This is the question which has given birth to this order.

(2.) . The facts need not detain me for long A bon sai view would do. The plaintiff has sought recovery of licence fee for a period subsequent to the service of notice or revocation of the license. The defendant states that the plaintiff can lay no claim for license after the revocation of the license and that consequently the plaint discloses no cause of action. The plaintiff, instead of lacing the challenge, is seeking permission to amend the plaint. And, it is this prayer which has generated the heat, for, as per the defendant, the plaint has necessarily to be rejected, and Order 7 rule 11 can-not be defeated by taking recourse to Order 6 rule 17 and by amending the plaint. Two judgments of this court namely Edwin Bhave v. Hari Chand, 1982 ILR (Delhi) Vol. 1 p' 697, and N. D. Khannu vs Hindustan Industrial Corporation,AIR 1981. Delhi 305 have provided the required ammunition, for, admittedly, they do per se lend supports to what has been contended by the defendant.

(3.) . Exploiting the judgments to the fullest, it is argued that when a plaint does not disclose a cause of action, it is mandatory upon the court to reject it under Order 7 rule 11 and that, in such a situation, the court has no power to permit the plaint to the amended. In short, the contention is that Order 7 rule 11, cannot be allowed to be defeated and destroyed by resort to Order 6 rule 17 since Order 6 rule 17 is controlled by and is sub-servient to Order 7 rule 11. I regret my inability to agree.