Case Note & Summary
The dispute arose from a suit for recovery of Rs.31,05,518/- filed by the respondent-plaintiff (a company) against the petitioner-defendant for raw material supplied. The plaintiff pleaded that the last payment was received on 30/10/2013 and the suit was filed on 25/10/2016. The defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 seeking rejection of the plaint on grounds that no cause of action was disclosed and the claim was barred by limitation, contending that the last delivery of goods was on 20/02/2013. While that application was pending, the plaintiff sought to amend the plaint by adding a paragraph about a withdrawn company petition filed on 16/09/2016 to show continuous cause of action. The trial court allowed the amendment and simultaneously rejected the rejection application on 01/07/2017. The defendant challenged both orders in a writ petition before the Bombay High Court (Nagpur Bench). The petitioner argued that the rejection application should have been decided first and that the amendment impermissibly took away an accrued right. Reliance was placed on Patasibai vs. Ratanlal and Ravajeetu Builders vs. Narayanswamy. The respondent contended that the plaint already disclosed cause of action, the suit was within limitation, and the amendment merely provided additional particulars without causing prejudice. The High Court examined the plaint averments and found that paragraphs 16, 19 to 21, and 24 clearly pleaded the last payment on 30/10/2013 and the outstanding amount, thus disclosing a cause of action and not indicating on the face of it that the suit was barred by limitation. The court noted that for deciding an application under Order VII Rule 11, only the plaint averments are to be seen, and the defendant's reliance on the last delivery date was not sufficient to reject the plaint at that stage. Regarding the amendment, the court observed that the trial court did not even consider the amended paragraph while rejecting the rejection application; therefore, no right of the defendant was affected. The ratio of Patasibai was held inapplicable because the cause of action was already pleaded in the unamended plaint. The court found no jurisdictional error and dismissed the writ petition, clarifying that if the defendant raises a limitation plea in the written statement, the trial court shall consider it at the stage of framing issues. No costs were awarded.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11, Code of Civil Procedure, 1908 - Plaint averments indicated that the last payment was received on 30/10/2013 and thereafter Rs.31,05,518/- was due; suit filed on 25/10/2016 was within three years from that date, thus disclosing a cause of action and not barred by limitation on the face of the plaint. The defendant's reliance on the last delivery date of 20/02/2013 was not determinative because the plaint pleaded last payment date. Hence, rejection of plaint was rightly refused (Paras 7-8). B) Civil Procedure - Amendment of Plaint - Order VI Rule 17, Code of Civil Procedure, 1908 - The plaintiff sought to add details of a withdrawn company petition to assert continuous cause of action. The trial court allowed the amendment but did not rely on the added paragraph while deciding the rejection application. Therefore, no right accrued to the defendant was taken away and the amendment did not cause prejudice. The mere pendency of a rejection application does not bar amendment, especially when the unamended plaint already disclosed cause of action (Paras 9-10).
Issue of Consideration
Whether the trial court erred in allowing the amendment of the plaint when an application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 was pending; and whether the plaint was liable to be rejected for not disclosing a cause of action or being barred by limitation.
Final Decision
Writ petition dismissed. Clarified that if the defendant raises a plea of bar of limitation in the written statement, the trial court shall consider it while framing issues. No order as to costs.
Law Points
- Plaint must be read as a whole to determine cause of action
- in an application under Order VII Rule 11 of the Code of Civil Procedure
- 1908 only plaint averments and documents are considered
- amendment of plaint is permissible if it does not take away an accrued right and is not relied upon to defeat a pending rejection application
