§ Order VII Rules 10 and 10A (in substance)

Rule 10(1). Subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation. A court of appeal or revision may direct, after setting aside the decree appealed against or revised, the return of the plaint under this sub-rule.

Rule 10(2): procedure on returning. On returning a plaint the Judge shall endorse on it the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

Rule 10A. Where a court is about to return a plaint and the defendant has already appeared, it may, instead of returning it, intimate its decision to the plaintiff, who may apply for a date to be fixed for appearance in the proper court and for notice of that date to be given to the defendant; the court shall then fix the date and give the notice, and the plaint is presented in the proper court on that footing.

§ Three points

• The ground is a single one: the suit should have been instituted in another court. That may be because of a want of territorial, pecuniary or subject-matter jurisdiction, and the rule applies equally to each.

• It may be done at any stage. The words are at any stage of the suit, so the court is not confined to the moment of presentation.

• Rule 10A exists to protect the plaintiff. Where the defendant has already appeared, returning the plaint would mean fresh summons and fresh delay; the rule allows the court to fix a date in the proper court instead.

(a)

Where it does not disclose a CAUSE OF ACTION

The court reads the plaint and its documents alone, and takes the averments as true; the defence is irrelevant at this stage

(b)

Where the relief claimed is UNDERVALUED, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed, fails to do so

Rejection follows only after a time is fixed and the plaintiff fails; Section 149 supplies the power to allow correction

(c)

Where the relief is properly valued but the plaint is written upon paper INSUFFICIENTLY STAMPED, and the plaintiff, on being required to supply the requisite stamp-paper within a time fixed, fails to do so

The same structure: an opportunity first, rejection only on failure

(d)

Where the suit appears FROM THE STATEMENT IN THE PLAINT to be BARRED BY ANY LAW

The bar must appear from the plaint itself; it cannot be established by the defendant's material at this stage

(e)

Where it is not filed IN DUPLICATE

Inserted in 1999 with the general requirement of filing in duplicate

(f)

Where the plaintiff fails to comply with Rule 9

Rule 9 deals with the filing of copies and the requisites for service

§ Two disciplines that govern Rule 11

The plaint is read as a whole, and alone. The court looks at the averments in the plaint and the documents filed with it, assumes them to be true, and asks whether on that footing the suit can proceed. The written statement is not considered.

Clever drafting does not save a sham. In T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 the Supreme Court held that where a plaint is manifestly vexatious and meritless, the trial court should exercise its power under Rule 11 and take care to see that the essential averments are not merely a clever drafting exercise creating an illusion of a cause of action, and that such a plaint must be nipped in the bud.

Rule 11 also applies to part of a plaint? The settled approach is that the rule operates on the plaint as a whole: a plaint is either rejected or it is not, and a partial rejection is not contemplated, though a relief may be struck out under other provisions.

The ground

The suit should have been instituted in another court

A defect in the plaint itself: no cause of action, undervaluation, insufficient stamp, a bar of law, no duplicate, or non-compliance with Rule 9

What is wrong

The FORUM

The PLAINT

Nature of the decision

An ORDER

A DEEMED DECREE under Section 2(2)

Appeal

Under Order XLIII Rule 1(a)

Under Section 96, and a second appeal under Section 100

What happens to the claim

It survives: the plaint is presented in the proper court

It is not adjudicated; Order VII Rule 13 preserves the right to a fresh plaint

Limitation

A live question, since the fresh presentation is a fresh act; Section 14 of the Limitation Act may exclude the time spent bona fide in the wrong court

The fresh plaint must itself be within time, the earlier plaint having been rejected

Opportunity to cure

Not applicable; the defect is the forum

Required under clauses (b) and (c): a time must be fixed and the plaintiff must fail

The court's alternative

Rule 10A: fix a date for appearance in the proper court instead of returning it

None; the court either rejects or does not

§ After a return

The plaint is presented afresh in the proper court, and the suit is treated as instituted there on the date of that presentation, not on the date of the original filing.

Limitation therefore becomes important. Section 14 of the Limitation Act, 1963 allows the exclusion of the time during which the plaintiff was prosecuting with due diligence and in good faith another civil proceeding in a court that, from defect of jurisdiction or other cause of a like nature, was unable to entertain it.

The proceedings do not carry over. Evidence recorded and orders made in the wrong court do not automatically bind the proper court, which is another reason Rule 10A was introduced.

§ After a rejection

Order VII Rule 13. The rejection of a plaint on any of the grounds in Rule 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

But the words of its own force matter. A fresh plaint must be within limitation, and where the rejection was under clause (d) because the suit was barred by law, a fresh plaint on the same averments will meet the same fate.

And the rejection is a deemed decree, so the plaintiff has a full right of appeal under Section 96 as an alternative to filing afresh.