This is a factual controversy. In the case of Maharaja Dharmander Prasad Singh etc. Evidence by way of affidavit of the plaintiff appellant herein was filed on which cross examination of the appellant was closed. It is also further submitted that the suit is barred by limitation having been filed beyond the period of three years. On that basis, he contested the suit filed by respondent No.
For the purpose of rejection of the plaint, the Court has to read the entire plaint as a whole to find out whether it discloses a cause of action. On that basis, decree of permanent injunction is sought against the defendant from changing the nature, character and use of the suit. But an order rejecting a plaint is treated as a decree as fiction has been created on it. However, no particulars of the said judgment were given at that time by any of the Defendants, and therefore, the Plaintiff could not take any action at that time. The question that arises is as to whether the plaintiff was granted liberty to file the present suit as per order dated 24.
In the cross-examination, no question on limitation was asked by the respondents. The suit was filed on 29. Of course, valuation of a suit and payment of court-fee is a matter between the plaintiff and the Court, and the defendant has no say in that respect. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that respondent no. The learned Senior Counsel therefore submitted that the cause of action based on notice dated 31. He further submitted that the application has been allowed by reading one para in isolation and ignoring other relevant paras of the plaint which specifically deal with the date of knowledge of the fraudulent decree obtained by the respondent on the basis of which ownership rights in the property were claimed. Written statement was filed by the respondents herein in which the respondents had taken the plea that the appellant appeared in the suits and as such he had full knowledge of the case.
However, the defendant neither took any step to remedy the breach nor replied to the said notice and as such accepted the termination of the lease. Aggrieved thus, the Bank approached the High Court. The court did not foreclose the right of the plaintiff to take steps for adjudication of her contentions. The learned Counsel therefore submitted that in view of the above factual position, the suit filed by the plaintiff in the year 2009 cannot be said to be barred by limitation and as such the plaint is not liable to be rejected and consequently the revision application filed by the defendant is liable to be dismissed with exemplary costs. The plaintiff was born on 29.
Perusal of the plaint did not reveal anything from which it could be concluded that the instant suit is barred under any provision of law. Niranjan, What you say is not correct. Only when you indicate this point specifically that is you should state what is the statement made in plaint which makes it barred by law , will it be possible for any one to say whether you can plead the same or not. In other words, the residuary article is applicable to every kind of suit, not otherwise provided for in the schedule. The Supreme Court in Meenakshi Sundaram vs. On the other hand, if the exact amount cannot be arrived at, as is then case with mesne profits, or claim for property from the defendant, an approximate figure must be mentioned by the plaintiff.
The time fixed by the court for the correction of the valuation or supplying the requisite stamp-papers shall not, however, be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to be plaintiff. The suit filed by the plaintiff in the year 2009 is hopelessly barred by limitation. The address for service of summons, notice, etc. Hence, limitation ceased prior to 29. It is stated that their relationship was strained due to various reasons and the two were staying on different floors since 1986-87. It was legally incompetent for the District Court to remand a non-est appeal. Where an intimation is given to the plaintiff under sub-rule 1 the plaintiff may make an application to the Court- a Specifying the Court, in which he proposes to present the plaint after its return, b Praying that the Court may fix a date for the appearance of the parties in the Court, and c Requesting that the notice of the date so fixed may be given to him and to the defendant.
This has to be done with utmost carefulness because the claims in the plaint cannot be backed by oral pleadings. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. Hence when a suit is likely to fail on account of a formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit, the court may grant permission to withdraw such suit with liberty to institute a fresh suit. The petitioner has raised issues as noted above regarding the date of commencement of the period of limitation. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct.
The relief claimed must be worded properly and accurately. The trial court has rightly rejected the application of defendant No. In so far as the issue of limitation is concerned, the learned Counsel submitted that the defendant had issued a notice of termination on 31. Rule 10-A: Lays down the procedure to be followed by the Court before the plaint is ordered to be returned, to be presented to the proper Court. We are of the view that both the trial Court as well as the High Court failed to advert to the relevant averments as stated in the plaint.