Defendant Present Before Issuing Summons Or Without Filing Caveat Can Be Heard On Rejection Of Plaint : Delhi High Court

The Delhi High Court has held that there is no bar in hearing a defendant, who is neither served summons nor appearing on caveat, at the pre-summons stage in a suit on the points for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure.

Since the Court is empowered to examine the grounds for rejection of plaint under Order VII Rule 11 at the pre-summons stage, it can hear a defendant who is physically present in the court even though no summons has been served on him or he has not filed caveat under Section 148A CPC.

Interpreting Section148A of CPC, Justice C Hari Shankar observed thus:

"... this provision, in my view, cannot, expressly or by necessary implication, deny the defendant a right of audience, to urge objections under Order VII Rule 11 even prior to the issuance of summons in a suit."

"Without going into the intricacies of the provision, it is clear that this petition, too, does not deny the defendant the right of audience, if the defendant is present and seeks to urge that the plaint should be rejected under Order VII Rule 11 even before summons are issued."

The observation came in a civil suit wherein one of the defendants had objected that the suit was liable to be rejected in terms of Order VII Rule 11(d) and that summons was not required to be issued in the matter.

This was objected by the plaintiff to argue that as the defendant did not have any right of audience and that he cannot be heard unless summons is issued to the defendant or the defendant has filed a caveat. 

Furthermore, it was submitted that summons is 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 such a suit would have to be relegated to a stage after the defendant responds to the summons.

However, the Court rejected the argument that summons has to be issued in every suit which is "duly instituted".

Referring to the judgment delivered by a division bench of Delhi High Court in Bright Enterprises Pvt. Ltd. v. MJ Bizcraft LLP, the Court reiterated that summons is not required to be issued where the suit is liable to be returned under Order VII Rule 10 or rejected under Order VII Rule 11.

"Clearly, therefore, it is open to a Court to examine, even  before issuing summons, whether the suit is required to be returned under Order VII Rule 10 or rejected for any of the grounds contained in Order VII Rule 11.

The submission, of Mr. Das (plaintiff), that summons have to be issued in every suit which is "duly instituted" is, therefore, without substance and is accordingly rejected. It is open to the Court to examine, even at this stage, whether the suit is barred by Order VII Rule 10 or Order VII Rule 11", the Court said.

On plaintiff's argument that the defendant cannot be heard even if he is present physically, the Court observed:

"Section 27 states that, once a suit is duly instituted, summons would be issued to the defendant to appear and answer the claim and may be served in the manner prescribed. This does not mean, in my opinion, that if the defendant is present even before issuing summons, and desires to contend that the suit is required to be rejected under Order VII Rule 11, the Court is barred from hearing him in the matter."

Furthermore, it said:

"Order V Rule 1 deals with the procedure for issuance of summons. Without going into the intricacies of the provision, it is clear that this petition, too, does not deny the defendant the right of audience, if the defendant is present and seeks to urge that the plaint should be rejected under Order VII Rule 11 even before summons are issued."

The Court said that it would be "trifle incongruous" to deny the Court the opportunity of hearing the defendant even if he is present.

"This appears, to me, to be straining the CPC to breaking point, and far beyond its legitimate limits", the Court observed.

"Even more empirically, it would also deny the right of the Court to competent legal assistance, despite its availability, which is fundamental to administration of justice."

The Court therefore rejected the argument of plaintiff and decided to proceed with hearing the parties on the objection of the defendant to the maintainability of the suit under Order VII Rule 11.

Senior Advocate Anupam Lal Das along with Advocate Abhey Narula appeared for the plaintiffs whereas Senior Advocate Ravi Gupta along with Advocates Mahip Datta Parashar, Sachin Jain and Sanya Lamba appeared for the defendant ((Kotak Mahindra Bank Ltd.)

Title: TAJUNISSA & ANR. v. MR. VISHAL SHARMA & ORS

 Click here to read/download the order