KALIPADA BHOWMIK Vs. BISWANATH PRASAD KUNDU AND ORS.

JUDGEMENT

(1.) WHETHER Order 7 Rule 11 of the Code of Civil Procedure contains exhaustive provisions under which a plaint can be rejected is one of the questions required to be answered in this appeal, Another question is whether form of the order passed by a Court is to prevail or the substance of the same ?

(2.) THESE questions have arisen on these short facts. The Plaintiff -Appellant filed a suit for declaration that the decrees obtained by the Defendants -Respondents earlier were collusive and fraudulent. After appearance the Defendants No. 1 and 2 prayed for inspection of the documents referred to in the plaint. This petition was filed on 21.11.75 and the Court fixed 1.12.75 for production of the documents. On that day further time was prayed by the Plaintiff which was allowed by awaring an adjournment cost of Rs. 10/ - fixing 15.12.75 for the purpose. on prayer for time again being made on that day, the same was rejected and the trial Court ordered for rejection of the plaint On an appeal being preferred, It has been held by the learned District Judge, Nowgong that the appeal was not maintainable in as much as the purported rejection of the plaint being not authorised by Order 7 Rule 11 the same could not be regarded as a "decree" within the meaning of Section 2(2) of the Code. In coming to this view, the learned District Judge placed reliance on Amba Shankar v. Seoti. : AIR 1937 All. 280, and Munusamy v. Chengalvaraya, : AIR 1943 Mad 645. both of which are renderings by single judges on the matters coming before them in revision, in Amba Shankar it was held that before an order can amount (SIC) rejection as (SIC) by Section 2(2), it must be "rejection authorised by some provisions of the Code of Civil procedure. In that case, the learned District Judge had order before rejection of the memorandum of appeal on a ground cot visualised by Order 7 Rule 11. On a revision being preferred against that order the same was set aside; In Munusamy, the rejection was ordered because the plaintiff had not filed a copy of the partition decree on which reliance was, placed in the plaint. It was observed by the High Court that this cannot be a reason to reject that plaint whose grounds are set out in Order 7 Rule 11. It was further observed that the punishment of non -production of such documents is the one set out in Order 7 Rule 18, viz. that the documents shall not, without the leave of the court, be received in evidence on behalf of the Plaintiff at the bearing of the suit.

(3.) I have duly considered the rival contentions and views. It appears to me that in the cases mentioned in Rule 11 of Order 7, a plaint has to be rejected there is no option left with, the Court. I would read this mandate from the opening words of Rule 11; "The plaint shall be rejected." (underscoring by me). There may however be some other contingencies under which the Court may feel called upon to reject a plaint. I would respectfully agree with what was stated by Bilgrami, J. in Radakishen (supra) that for rejection of the plaint urder this Rule on any of the grounds other than those specified, the defect must be such as would affect the jurisdiction, Such a rejection would be a 'decree' within the meaning of section 2(2) of the Code, and so appealable. For the case at hand, it is not necessary to pursue this aspect of the matter further inasmuch as the appeal was maintainable, according to me, even otherwise, as the impugned order has to be regarded to be one passed under Order 11 Rule 21, to which my attention was fairly drawn by Shri Yadav. That Rule has its application because the present cannot be said to be a case covered by Order 7 Rule 18. of which mention has been made in Munusamy (supra) From, the materials on record it does not appear that the documents whose inspection was sought for were those on which the Plaintiff had sued or had relied as evidence in support of h is claim had it been so, Order 7, Rule 18 would have been (SIC). As against this, Order 11 Rule 21 visualises dismissal of (SIC)where a Plaintiff falls to comply with an order of inspec -of documents, Any order passed under this provision has been made appealable under, Order 43 Rule 1(f). In the present case the order of rejection had to be passed on the Plaintiff's, (SIC) to produce documents whose inspection was prayed by the Defendants. As such, order 11 Rule 21 gets squarely attracted, and any order of dismissal passed under it is appealable us indicated. Though the learned trial Court has not said about the dismissal of the suit, but has ordered for rejection of the plaint, it would not advance the cause of justice to go by the form of the order rather than the substance of the same. There (SIC) a specific provision in the Code providing for the effect non -compliance with an order of Inspection of documents, (SIC) to some other general provision does not seem permissible.