網頁圖片
PDF
ePub 版

dwelling or carrying on business, or personally working for gain, within such local limits.

On returning a plaint, the Judge shall, with his own Procedure on return: hand, endorse thereon the date of its preing plaint.

sentation and return the name of the party presenting it, and a brief statement of the reason for returning it.

Act VIII of 1859, section 50. This section applies to P. S. C. C.

At or before First Hearing.–The words “at or before first hearing" are not in this section-Nidhi Lal vs. Mazhar, I. L. R., 7 Alla., 230, p. 445.

Appeal.-When a District Judge returned a petition of appeal to have it presented to the High Court, it was hel that as the order was not a decree the proper remedy was not by second appeal or revision, but appeal from the order under section 588, cl. (c), post - Kunhikutti vs. Achotti, I. L. R., 14 Mad., 462.

Appellate Court.-The order of an Appellate Court returning a plaint is appealable-Joynath vs. Lal Bahadour, I. L. R., 8 Cal., 126 ; Bindeshri vs. Nandu, I. L, R., 3 Alla., 456.

Limitation.—The date of suit must be taken to be that on which the plaint was orginally filed-Khellat Chunder vs. Nusseebunnissa, 16 W. R., 47.

Revision.-The order of a Munsif returning a plaint, on the ground that the subject matter of the suit is beyond his jurisdiction, is liable to revision under section 622, post Badami Kuer vs. Dinu Rai, I. L R., 8 Alla., 112 ; it is not a decree-Mahabir Singh vs. Behari Lal, I. L. R., 13 Alla., 320; and a second appeal does not lie — Krishna Ram vs. Narsingh, I. L. R., 3 Alla., 855.

Reference.-See section 646A, infra.

Form of Order. - The practice under Act VIII, was not uniform. In Muzhur Ali vs. Mussamut Basoo, 8 W. R., 47, Macpherson and Seton-Karr, JJ., held :-"The question as to the valuation did not arise upon the face of the plaint. It therefore was not raised at the time of filing the plaint nor until the first hearing which came on in due course upon the return of the summons. Consequently, the provisions of sections 30, 31, 32 of Act VIII of 1859, all of which are sections relating to the first presenting and filing of the plaint, do not apply to the present case at all. And the Munsif, finding at the hearing that he had no jurisdiction on account of the real value of the claim, ought, in strictness, as it seems to us, to have at once dismissed the suit on the ground of jurisdiction. But the Munsif, not in the first instance adopting this course, followed the directions, or rather the spirit of section 31 of Act VIII of 1859, and gave the plaintiff an opportunity of correcting her error. Of this opportunity the plaintiff did not avail herself, and the Munsif then dismissed the suit. Under these circumstances we are at a loss to conceive what other decree the Munsif could have made.” In Saluji Kesraji v. Rajsangji Jalmsangji, 2 Bom., 162, Couch, C. J., considered that section 32, Act VIII of 1859, applied only to a cause “ before the defendant is called on to state his defence.” But it was often held that the plaint should be returned and the suit not dismissed after evidence in the first Court-Ram Gutty vs. Goonomonee Debia, 11 W. R., 177 ; Kartick Nath Panday vs. Roy Nundeput Mahatab, 23 W. R., 263 ; either after trial in the first Appellate Court or even in the High Court itself --Edoo vs. Hefazut Hossein, 13 W. R., 358.

In Bombay, the practice is not settled. On the Appellate Side and in the Mofussil the plaint is returned, if the Court has not jurisdiction, even after the trial has been concluded –Prabhakarbhat vs. Vishwambhar, I. L. R., 8 Bom., 313, even in second appealBabaji vs. Lakshmibai, I. L. R., 9 Bom., 267; but otherwise on the Original Side-Bai Amrit vs. Huribhai, I. L. R., 8 Bom., 380. In Madras, the practice is the same as that in the Bombay Mofussil Courts-Kheruji vs. Sa Purshotam, I. L. R., 7 Mad., 171 ; Kandu vs. Konda, I.L. R., 8 Mad., 63 ; Chandu vs. Kombi, I.L.R., 9 Mad., 208;

Naghurm vs. Subra, I. L. R., 11 Mad., 197 ; even if the Court of proper presentation is a Revenue Court-Muttirulandi vs. Kottarjav, I. L. R., 10 Mad., 211. The decisions in Calcutta are to the same effect-Prosad Dass Mullick vs. Russick Lall, I. L. R., 7 Cal., 157 ; Bhadeshwar Vs. Gaurikant, I. L. R., 8 Cal., 834; Moshingan vs. Mozari, I. L. R., 12 Cal., 271 ; Joynath vs. Lall Bahadour, I. L. R., 8 Cal., 126; 10 I. L. R., 146. This seems also to be the practice in the North-West Provinces- Abdul Samad vs. Rajindro, I. L. R., 2 Alla., 357.

ad

Concise statements.

58. The plaintiff shall endorse on the plaint, or annex Procedure on

thereto, a memorandum of the documents mitting plaint. (if any) which he has produced along with it; and, if the plaint be admitted, shall present as many copies on plain paper of the plaint as there are defendants, unless the Court by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason,

permits him to present a like number of

concise statements of the nature of the claim made, or of the relief or remedy required, in the suit, in which case he shall present such statements.

If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or defendant sues or is sued.

The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint.

The chief ministerial officer of the Court shall sign such memorandum and copies or statements if, on examination, he finds them to be correct. The Court shall also cause the particulars mentioned in

section 50 to be entered in a book to be Register of suits.

kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaint is admitted.

Act VIII of 1859, section 38 ; Judicature Acts, Order 2, Rule 1. This section applies

A plaintiff should enter in his plaint and concise statement a claim for an injunction and receiver where the obtaining either is a substantial portion of the action-Coleborne vs. Coleborne, 1 C. D., 690.

FORM OF CONCISE STATEMENTS-See schedule IV, No. 114, infra.

FORM OF REGISTER-See schedule IV, No. 116, and section 644, infra. As to further entries in it, see sections 245, 426, 562, 581. 59. If a plaintiff sues upon a document in his posses

sion or power, he shall produce it in Court Production of document on which plain- when the plaint is presented, and shall tiff sues. Delivery

at the same time deliver the document or ment or copy.

a copy thereof to be filed with the plaint. If he rely on any other documents (whether in his posList of other docu

session or power or not) as evidence in

support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

Act VIII of 1859, section 39, clause 1. This section applies to H. C. and P. S. C. C.

The Courts were not agreed as to the construction of the corresponding section of Act VIII of 1859. In Promsook Chunder vs. Rajkristo Mitter, Hyde, 145, Weil, J., held, that it prevented a plaintiff from using any document which he did not produce

at the time the plaint was filed; but in S. M. Kameenee Dossee vs. S. M. Hurromoney Dossee, Coryton, 151, Phear, J., held that the section only applied to

to H. C. and P. S. C. C.

of

docu

ments.

66

or

enter in the list

such documents as are in their nature the essence of the case, and on which the plaint is founded. In the case of Roshun Jehan vs. Inayut Hossein, Marsh., 127, p. 135, Peacock, C. J., said : “By section 39, Act VII, 159, a plaintiff must file with his plaint all documents upon which he relies as evidence in support of his claim; and that no document not presented with the plaint can be received at later stage of the case without the sanction of the Court. The Judge is not accountable for the number of the documents produced by a plaintiff in support of his claim. All documents put on by the parties must be received; but under section 129 of the Code the Court is competent to reject such documents and rid the record of their presence. See note on section 63, post.

Pottahs.- Ataoola Mundle vs. Saheeooddeen Tarafdar, W. R., 1864, p. 271, and titledeeds sued on are within the section-Lekhraj vs. Mutty, 14 W, R., 95.

60. In the case of any such document Statement in case of not in his possession or power, he shall, if documents not in his possession or power.

possible, state in whose possession or power

it is. This section applies to H. C. and P. S. C. C.

61. In case of any suit founded upon a negotiable Suits on lost negoti- instrument, if it be proved that the instruable instruments. ment is lost, and if an indemnity be given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may make such decree as it would have made if the plaintiff had produced the instrument in Court when the plaint was presented and had at the same time delivered a copy of the instrument to be filed with the plaint.

Act V of 1866, section 14. This section applies to H. C. and P. S. C. C.

A suit will lie on the ground that the indorser refused to give a new cheque for one lost, or to refund the money paid for it. The drawer should be made a partyBaldeo Prasad vs. Grish Chandar, I, L. R., 2 Alla., 754.

62. If the document on which the plaintiff sues be ari Production of shop- entry in a shop-book or other book in his book.

possession or power, the plaintiff shall produce the book at the time of filing the plaint, together with a copy of the entry on which he relies.

The Court, or such officer as it appoints in this behalf, Original entry to be

shall forth with mark the document for the marked and returned. purpose of identification ; and, after examining and comparing the copy with the original and attesting the copy if found correct, shall return the book to the plaintiff and cause the copy to be filed.

Act VIII of 1859, section 39. This section applies to H. C. and P. S. C. C.

This section does not require the Court to inspect the document, but only that the Judge or officer should mark it for identification - Atmaram vs. Amir Chund, 3 Bom., 92. Suit on a lost cheque-Baldeo Prasad vs. Grish Chandar, I. L. R., 2 Alla., 754. 63. A document which ought to be produced in Court

by the plaintiff when the plaint is preInadmissibility of document not produced sented, or to be entered in the list to be when plaint filed.

added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

Nothing in this section applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant, or handed to a witness merely to refresh his memory,

Act VIII of 1859, section 39. This section applies to H. C. and P. S. C. C.

Under section 39, Act VIII of 1859, the Court had no power to allow a plaintiff to file his documents at the settlement of the issues or the first hearing and not with his plaint-Campbell vs. Keith, 1 Hyde, 287.

Shall Not.-The words of the law are imperative-Ritchie, Stuart & Co. vs. Glad. stone, Wyllie & Co., 1 Ind. Jur., 0. S., 125.; and prohibit a plaintiff from using any document which he did not produce or enter in the list when the plaint was filed - Promsook Chunder vs. Rajkristo Mitter, 1 Hyde, 145, unless the Court exercises the discretion given to it under this section-Lopez vs. Driberg, W. R., 1864, Act X, 67.

Not Produced with Plaint.-But the omission to produce a document when instituting a suit is no ground for rejecting the plaint-Ex-parte Rayachand, 2 Bom., 369.

Received in Evidence.--Merely giving a document to a witness to refresh his memory is not receiving it in evidence- Ramji vs. Rangayya, 1 Mad., 168.

To what Documents Applies.-Where khusrah papers, which formed the very essence of the action, were not filed or produced with the plaint within the prescribed time, the Court of first instance was held to have been justified in rejecting them when subsequently tendered as evidence-Amur Chand vs. Ram Rutun, 18 W. R., 515.

In the case at 1 Hyde, 145, referred to above, Wells, J., held that the section covered every document used in evidence, but in the case of s. M. Kameenee Dossee vs. S. M. Hurromoney Dossee, Cryton, 151, it was decided that the prohibition only extended to promissory notes and bills of exchange which are in their nature the essence of the action, and on which the plaint is founded. "In that case, which was to recover certain jewels, the defendant objected to the admission of a list of the jewels on the ground that it should have been filed with the plaint; the objection was overruled. See note under section 59, ante.

Leave of the Court.-In section 39, Act VIII, 1859, the words were Sanction of the Court," and where documents were referred to an Ameen to inspect, and ultimately acted upon by the Court, this was held to be abundant proof of sanction-Goshain Tota Ram vs. Rickmunee, 13 Moore, 77, p. 83.

It is sufficient for the admission of a document under this section that the plaintiff was in ignorance of its existence when the plaint was filed-Ritchie, Stuart & Co. vs. Glad. stone, Wyllie & Co., 1 Ind. Jur., O.S., 125; or that Court is satisfied of its bonâ fide nature and reliableness-Attaoollah Mundle vs. Sukeeooddeen Tarafdar, W. R., 1864, p. 271 ; and if there is no doubt of the existence of the documents at the date of suit it should be admitted-Devidas vs. Pirjada, I. L. R., 8 Bom., 377.

Appeal.—The reception of evidence afterwards with leave of the Court is not a ground of appeal–Goshain Tota Ram vs. Rickmunee, 3 B. L. R. (P. C.), 316 ; 13 Moore, 77; it does not affect the merits of the case-Ram Chunder vs. Chunder Coomar, 13 Moore, 181, p. 198; Minakshi vs. Velu, I. L. R., 8 Mad., 373, see notes on sections 138—-145, post; but the refusal to receive it may be a good ground-Mahadevappa vs. Srinivasa, I. L. R., 4 Mad., 417; Devidas vs. Pirjada, I.L.R., 8 Bom., 377.

CHAPTER VI.
OF THE ISSUE AND SERVICE OF SUMMONS.

Issue of Summons.
64. When the plaint has been registered, and the copies

or concise statements required by section Summons.

58 have been filed, a summons may be issued to each defendant to appear and answer the claim on a day to be therein specified,

(a) in person, or

(6) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(c) by a pleader accompanied by some other person able to answer all such questions.

Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court :

Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.

Act VIII of 1859, section 41. This section applies to H. C. and P. S. C. C.

If the defendant dies before the filing of the plaint, the case cannot proceed-Mohun Chunder Koondoo vs. Azeem Gazee, 12 W. R., 45.

After a plaint has been filed, the first duty of a Judge is to summon the defendant whether he be a minor or not-Suresh Chunder vs. Jugut Chunder, I. L. R., 14 Cal., 204.

Summonses.-Summonses to defendants must issue under the signature of the Judge, or such officer as he appoints, and the seal of the Court-1 C. O. (N.-W.), 1871. FORM OF SUMMONS.-See schedule IV, Nos. 117, 118, 119, infra.

To Appear.–This refers to appearance under section 100, post-Hira Dai vs. Hira Lal, I. L. R., 7 Alla., 538.

Fresh Summons.-An application for fresh summons to appear should not be made until the first summons has been returned into Court-Dowlut vs. Omrao, 14 W.R., 336 ; Issur Chunder Sein ys. Aushotosh Chatterjee, 1 Ind. Jur., N. S., 283; and should be supported by a petition shewing that a fruitless endeavour has been made on the part of the plaintiff to serve the first summons, and that it was not by any default of his that he had failed -Urquhart vs. Gilbert, 1 Ind. Jur., N. S., 224. But see the case of Hanlon vs. East India Branch Railway, 1 Hyde, 197, where a new summons was granted on an objection raised to the sufficiency of service, without any petition. Where a party had failed for 12 months to serve notice of appeal on the respondent, a second notice was refused -Doolee vs. Nirban, 20 W. R., 62.

Summons not to Issue.-If the defendant voluntarily appears there seems no reason to issue a summons. Thus an insolvent defendant appeared at the filing of the plaint and confessed judgment at the suit of one his creditors; it was held that the Judge had no other course than to give judgment for the plaintiff ; provided he was satisfied of the identity of the defendants, or that the advocate who appeared for them was duly instructed-Bank of Bengal vs. Currie & Co., 3 B. L. R., 396, p. 403. 65. Every such summons shall be accompanied with

one of the copies or concise statements menCopy or statement annexed to summous. tioned in section 58. This section is new. It applies to H. C. and P. S. C. C. 66. If the Court sees reason to require the personal appear

ance of the defendant, the summons shall Court may order defendant or plaintiff to order him to appear in person in Court on appear in person.

the day therein specified. If the Court sees reason to require the personal appearance of the plaintiff on the same day, it may make an order for such appearance.

« 上一頁繼續 »