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Imrit Nath vs. Roy Dunput, 9 B. L. R., 241 ; or the plaintiff may be called on to elect against which defendant he will proceed-Hurro Monee vs. Onookool, 8 W. R., 461. See also kachar vs. Bai, I. L. R., 7 Bom., 289; Mahomed vs. Krishna, I. L. R., 11 Mad., 106, p. 111. In Allahabad the Appellate Court dismisses the suit-Karau Singh vs. Muhammad, I. L. R., 7 Alla., 860. See - Procedure on Objection," section 44, ante.
Stamps.-See section 17 of the Courts Fee Act, and Mul Chand vs. Shib Charan Lal, I. L. R., 2 Alla., 676 ; Chedi Lal vs. Kerath Chand, id., 682 ; Kishori Lal vs. Shurut Chunder, 10 C. L. R., 859. 46. Any defendant alleging that the plaintiff has united
in the same suit several causes of action Defendant may apply to confine suit.
which cannot be conveniently disposed of in one suit may at any time before the first hearing, or, where issues are settled, before any evidence is recorded, apply to the Court for an order confining the suit to such of the causes of action as may be conveniently disposed of in one suit.
Judicature Acts, Order 18, Rule 8.
Application.-This section only applies where there are several causes of action against the same defendant. It does not justify a Judge striking out a party-Khadar vs. Chotibibi, I. L. R., 8 Bom., 616.
Before First Hearing.–These words are imperative-Damodhar vs. Gokal, I. L. R., 7 Alla., 79, p. 100.
In a suit to set aside a deed of partnership for misrepresentation, or in the alternative that the partnership created by it should be dissolved and accounts taken, and defendant moved for an order to amend, contining the statement to one of the alternative claims, the application was refused-Bagot vs. Easton, 7 C. D., 1. And see Child vs. Stenning, 7 C. Ď., 413; 11 C. D., 82. 47. If, on the hearing of such application, it appears
to the Court that the causes of action are Court on hearing ap- such as cannot all be conveniently disposed plication may exclude some causes and order of in one suit, the Court
of such causes of action to be excluded, and may direct the plaint to be amended accordingly, and may make such order as to costs, as may be just.
Every amendment made under this section shall be attested by the signature of the Judge.
Judicature Acts, Order 18, Rule 9. It applies to H. C. and P. S. C. C.
OF THE INSTITUTION OF SUITS. 48. Every suit shall be instituted by presenting a plaint
to the Court or such officer as it appoints Suits to be commenced by plaint.
in this behalf. This section applies to H. C. and P. S. C. C.
North-West.- Plaints should be first filed with the Clerk of the Court to report whether the necessary conditions as to the stamp, time, accompaniments and the like have been duly attended to; the petition should then be returned to the pleader or party to present to the Court for admission-2 Civ, L. (N.-W.), 1872.
Date.- Where a plaint was presented on the 29th, and the endorsement said it was accepted on the 31st, the 29th and not the 31st was considered the day of institution --Young vs. MacCorkindale, 19 W. R., 159.
Sunday.-A plaint may be received and admitted on Sunday or any other holiday - Ununto Ram vs. Protab Chunder, 16 W, R., 230; Ram Dass vs. Official Liquidator I. L. R., 9 Alla., 366, p. 380 ; but there is no necessity to do so; for under the Limitation Act, if the period of limitation expires when the Courts are closed, the suit may be admitted on the day that the Court re-opens; and so may any application-Peary Mohun vs. Anunda, I. L. R., 18 Cal., 631.
Court.-In the North-West a plaint must be presented in office ; and where a suit was admitted by a Munsiff at his private residence after he had left office, it was considered as filed on the following day when the Court re-opened-Jai Kuar vs. Heera Lal, 7 Alla., 5; but in Lower Bengal plaint delivered at the private residence of the clerk of a Small Cause Court has been held to have been properly filed-Mudden Mohun Chuckerbutty vs. Fakeer Biswas, Suth., S. C. Ref., 36, and where a plaint, sent by post, was accepted, the institution was considered sufficient in Madras-Sankaranarayana vs. Kunjappa, I. L. R., 8 Mad., 411. The Nazir of a Small Cause Court is not authorized to receive plaints; they cannot be filed with him-Raj Chunder Gope vs. Joogul Gope, 18 W. R., 172.
When the Court of a Subordinate Judge is temporarily closed, the Court of the District Judge does not become the Court of first instance in which the original suit should be filed and the proceedings are void-Ramaya Elapa vs. Muhamadbhai, 10 Bom., 495; Motilal Ramdas vs. Jamnadas Jarerdas, 2 Bom., 40; see also Ledgard vs. Bull, 13 Mad. Ind. App., 134.
Where a plaint under Act X, 1839, was presented to an Assistant Collector, and not to the Collector, all subsequent proceedings were declared invalid, and the plaint was returned to be properly filed-Roopa vs. Anwar Ali, 4 Alla., 35; in Bengal the proceedings are voidable at the option of the defendant only-Mackintosh vs. Kashee Nath Biswas, 21 W. R., 450. No plaint should ordinarily remain unregistered for more than one day, for it is the duty of every Judge to take up at latest on the day following their presentation all plaints filed in his Court-Sud. Civ. 0. (N.-W.), 1865; 11 Civ. Cir (N.-W.), 1865.
49. The plaint must be distinctly written in the lanLanguage of plaint.
guage of the Court ; provided that, if such
language is not English, the plaint may (with the permission of the Court) be written in English; but in such case, if the defendant so require, a translation of the plaint into the language of the Court shall be filed in Court.
Act VIII of 1859, section 26. This section applies to H. C. and P. S. C. C.
There is no rule which requires as much as possible of the substance of the plaint to be engrossed on stamped paper; and so long as the rule in Bengal Government Notification of 1st July 1872, against the use of a larger number of stamps than is absolutely necessary has been complied with, it is not material whether the plaint be taken to commence or end on the plain paper-In the matter of the Land Mortgage Bank, 18 W. R., 326.
A document referred to in the plaint is not necessarily a part of the plaint-Foullon is. Gwyther, 1 Bourke, 273.
Particulars to be 50. The plaint must contain the folcontained in plaint.
lowing particulars :(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff ;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained ;
(d) a plain and concise statement of the circumstances constituting the cause of action, and where and when it arose ;
(e) a demand of the relief which the plaintiff claims ;
and (f) if the plantiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. If the plaintiff seeks, the recovery
money, the plaint must state the precise amount, so far as In money-suits.
the case admits. In a suit for mesne profits, and in a suit for the amount which will be found due to the plaintiff on taking unsettled accounts between him and the defendant, the plaint need only state approximately the amount sued for.
When the plaintiff sues in a representative character, the Where plaintiff sues plaint should show, not only that he has as representative.
an actual existing interest in the subjectmatter, but that he has taken the steps necessary to enable him to institute a suit concerning it.
Illustrations. (a) A sues as B's executor. The plaint must state that A has proved B's will.
(b) A sues as C's administrator. The plaint must state that A has taken out administration to C's estate.
(c) A sues as guardian of D, a Muhammadan minor. A is not D's guardian according to Muhammadan law and usage. The plaint must state that A has been specially appointed D's guardian. The plaint must show that the defendant is or claims to
be interested in the subject-matter, and Defendant's interest and liability to be that he is liable to be called upon to answer shown.
the plaintiff's demand.
Illustration. A dies, leaving B his executor, C his legatee, and D a debtor to A's estate. C sues D to compel him to pay his debt in satisfaction of C's legacy. The plaint must show that B has causelessly refused to sue D, or that B and D have colluded for the purpose of defrauding C, or other such circumstances rendering D liable to C.
If the cause of action arose beyond the period ordinarily
allowed by any law for instituting the suit, Grounds of exemption from limitation the plaint must show the ground upon
which exemption from such law is claimed. Act VIII of 1859, section 26. This section applies to H. C. and P. S. O. C. and in part to M. S. C. Ć.
SUITS AGAINST GOVERNMENT AND PUBLIC OFFICERS.--See Chapter XXVII, post.
Suits BY AND AGAINST ALIENS AND FOREIGN NATIVE RULERS.-See Chapter XXVIII, post.
SUITS BY AND AGAINST CORPORATIONS AND COMPANIES.-See Chapter XXIX, post; "PLAINTIFF” and “DEFENDANT" under this section.
SUITS BY COMPANIES AGAINST MEMBERS.-See Act VI of 1882, section 91.
SUITS BY AND AGAINST TRUSTEES AND EXECUTORS. -See Chapter XXX, post, and “REPRESENTATIVE CAPACITY" under this section.
SUIT3 BY AND AGAINST MINORS.-See Chapter XXXI, post.
SUITS UNDER THE RENT ACTS.-See Act 1 (B. C..) 1879, sections 46-48; Chutia Nagpore. Act XII of 1881, sections 104, 110 and 116 North-West); Act XIX of 1868, section 110 (Oudh); Act VIII of 1865 (Mad.); Act VIII, 1885, section 143, clause (6) and section 1, ante; Act IX of 1883, section 67, Central Provinces.
FORMS OF PLAINTS. -See Schedule IV, Nos. 1-115
Plaintiff -A Corporation should sue in its own name-Ram Doss Sein vs. Stephenson, 10 W. R, 366 ; an unregistered or unincorporated company must disclose the names its members when suing-Koylash Chunder vs. Ellis, 8 W. R., 45 ; but such of the members of a partnership as are minors can neither sue, be joined as co-plaintitfs, in their own names-Pilum Dass and Gouree Dutt vs. Ram Dhone Dass, 1 Taylor, 279. See Lindley on Partnership, 74, 261, 280.
Description.-To describe the plaintiff as “ A B., an infant, residing in Chitpore Road in the Town of Calcutta,” is not a sufficient description of his place of abode under grction 50, of the Civil Procedure Code ; nor is it suficient under this section to describe the defendant as “formerly of Calcutta,” without alleging that the plaintiff has been unable to ascertain his place of residence more definitely-Bibee Soloman vs. Abdoot Aziz, 4 C. L. R., 366.
In a plaint the Manager of M. Bank began thus, “ George Henry Webb., Manager of the above named plaintiff business, states as follows,” and verified it thus.” “For the M. Bank, Limited, G. H. Webb, Manager,”: Held, the Bank, and not Webb was plaintiff-The Mussoorie Bank vs. Barlow, I. L. R., 9 Álla., 188.
Agent.-When a person sues on behalf of his principal under a power-of-attorney, the principal's name should appear as plaintiff --Choonnee Sookul vs. Hur Pershad, 1 Alla., 277. Under Act X of 1859, suburakars and teshildars can institute suits for rent, but the zemindar's name, and not their own names, must be entered as plaintiffLadlee vs. Gunga, 4 Alla., 59.
Benamidar.-Suits for property should be brought in the name of the real, and not in the name of the colourable owner-Tamaoonnixxi vs. Woojjulmonee, 20 W. R., 72.
Assignee.-Where the plaintiff has sold his rights during the pendency of his suit, it is irregular to substitute for his name that of the purchaser, but it is an irregularity that can be cured by the consent of the defendant-Beer Chunder vs. Tumeczooddeen, 12 W. R., 87; 3 B. L. R., 214,
Special Appeal.-It should be borne in mind that incompetency to bring a suit may be urged for the first time orally in special appeal-Radha Kishen vs. Bakhtawur Lall, 1 Agra F. B., 175.
Defendants.-The description contemplated by the Code includes all the titles by which the party is generally known; and if a party from obstinacy, or pique, or anything in fact but a bona fide dispute as to the right to a title, persistently refuses to give his adversary that title by which he is generally recognized, the Court ought not to permit, nor sanction, that species of insult. Defendant objected that his titles were not set forth, and asked that he might be described as in the Government Gazette “The Honorable Maharajah Meerja Vijaya Rama Gujaputi Raz Mane Sultan Bahadur, Guru of Vizianagram,” and plaintiff was granted a week to amend, but did not. It was held by the Privy Council, overruling the High Court, that, with the exception of the word “Honorable" which seemed less a matter of description than an honorary distinction, as it applied to the Members of Council, the Judge was right in insisting on the titles, and in rejecting the plaint on non-compliance, as the titles could not be rationally disputed-- Raja Seta Ram Krisını ys. Raja Vijaya Rama, &c., 3 Mad., 31 ; 18 W. R., 301. In this case their Lordships disapproved of the case of Kishen Chand vs. Meghraj, 12 W. R., 450, in which the High Court at Calcutta refused to insist on the insertion of the words “Roy Bahadur.”
Corporation.-A corporate body should be sued in its corporate name. A suit against “A B,” agent of the corporation, is bad-Nabeen Chunder vs. Stephenson, 15 W. R., 534 ; Mohendronath Mookerjee, Overseer, 9 W. R., 206.
Unincorporated Company.-In the case of an unincorporated or unregistered company, the names of the persons composing it must be set forth as a rule; Pulin Behari vs. Watson, B. L. R., (F. B.) 904, p. 906; but if the plaintiff cannot find out the names, he may sue the company in the name in which they are carrying on business, stating his inability to give a better description-Kaylash Chunder vs. Ellis, 8 W. R., 45; Cannan vs. Koylash Chunder, 25 W. R., 117.
Agent.-In a suit against A B, proprietor of an estate, A B and not his karendah should be the defendant-Madho Radpav vs. Thakoor Pershad, 4 Agra, 127.
Cause of Action.- The plaint must include all the existing grounds on which the plaintiff can succeed-Premanund vs. Ram Churn, 20 W. R., 482 ; Denobundhoo vs. Kristomonee, I. L. R., 2 Cal., 152; it must not contain mere argument-Bishen Sahaye vs. Beer Kishore, 8 W. R., 296. The different titles should be set out in the alternative, otherwise the title which has been put forward will alone be put in issue, and if the plaintiff is not successful, a second suit will be barred; Kalidhunvs. Shiba Nath, 1. L. R., 8 Cal., 483, p. 501 ; but see Becharji vs. Pujaji, 1, L. R., 14 Bom., 31; Jibunti vs. Shib Nath, I. L. R., 8 Cal., 819; Amanat Bibi vs. Imdad Husain, 15 Ind. App., 106. And when in an action in ejectment against a tenant holding over the owner failed to prove the lease, and he did not amend: Held, he could not fall back on his general title, and the suit was dismissed- Ramchandra vs. Vasudev, I. L. R., 10 Bom., 451.
In England a plaintiff can now plead material facts though not material to the cause of action-Millington vs. Loring, 6 Q. B. D., 190.
Facts not evidence should be stated even if the facts are admissions-Davy vs. Garrett, 7 C. D., 473.
Inconsistent Tilles.-Alternative titles are allowed. Thus a person may base his suit on a mortgage and a deed of sale-- Ramgutty vs. Abdool, 20 W. R., 73; or base a claim to land on a hereditary right and also a right of occupancy-Woodit vs. Buldeo, 21 W. R., 12; but a claim to property as the property of the plaintiff is inconsistent with his claiming it by prescription, and in such a case the Court should call on him to electBijoy Keshub vs. Obhoy Churn, 16 W. R., 198; contra-Ameeroonissa vs. Wooma. roodden, 14 W. R., 49; and see Laksmibai vs. Hari, 9 Bom., 1. But possibly the better rule is that he cannot make inconsistent statements of facts though he may plead inconsistent titles-In re Morgan, 39 C. D., 492: Davy vs. Garrett, 7 C. D., 473, p. 489; Philipps vs. Philipps, 4 Q. B. D., 127, p. 134.
Inconsistent Claims.-A claim in the plaint to set aside a document as a forgery cannot be combined with a subsequent claim to set it aside on the ground that no consideration passed or undue influence or fraud had been practised on the executant-Mahomed Buksh vs. Hosseini, 15 Ind. App., 86 ; Iyappa vs. Ramalakshmamma, I. L. R., 13 Mad., 550; and where an adoption was denied in the first Court, the plea that the adoption, if any, was only conditional was not allowed-Narayanasami, vs. Ramasami, I. L. R., 14 Mad., 172 ; but see Owen vs. Morgan, 35 C. D., 492; Howe vs. Smith, 27 C. D., 89, p. 96 and the cases in the last paragraph.
Partition. -As to when it is not necessary to ask for partition of the whole family property, see Subbarazu vs. Venkataratuam, I. L. R., 15 Mad., 234.
Boundary.-A suit to fix a boundary should show that the boundary has been transgressed-Ameeroonissa vs. Gopal, 22 W. R., 134.
In suit for land in Bengal the boundaries need not be stated in the plaint if the description given is sufficient for its identification-Aftaboodden vs. Shumssoodeen, 18 W. R., 461 ; contra-Mahomed Ismail vs. Lalla Dhundur, 25 W. R., 39. In the NorthWest the fields are numbered and their position is given-Fyz Ahmed Khan vs. Gunga, S. D., N.-W., 1857, p. 112.
Damages.-In a suit for damages, the nature of the injury should be set out-Mohesh Chunder vs. Ramdhun, 13 W. R., 248.
Declaration.-In a suit for a declaratory decree, the title and the circumstances requiring the declaration should be set forth--Khadim Ali vs. Nazeer Begum, 3 Alla., 262,
Possession.-In suits to recover possession, the date of dispossession must be given as accurately as possible-Boydonath vs. Ojan, 11 W. R., 238.
Fraud.-General allegations however strong are insufficient to amount to an averment of fraud of which a Court will take notice-Walingford vs. The Mutual Society, 5 App. Cas., 697 ; the particulars must be set out-Gunga Narain vs. Tiluckram, 15 Ind. App., 119; as to concealed fraud, see Rahmubhoy vs. Turner, I. L. R., 14 Bom., 408, p. 427. There is no objection to the use of such general words as fraud" or "collusion," but they are quite ineffectual to give a fraudulent colour to the particular statement of fact in the plaint unless these statements taken by themselves are such as to imply that fraud has been actually committed-Gunga Narain vs. Tiluckram, 15 Ind. App., 119. Thus a plaint to set aside an award must definitely state some fraud, or other malpractice of the opposite party-Hurchurun Doss vs. Hazam Mull, 1 Ind. Jur., O. S., 12.
See FRAUD," section 11, ante, and section 53, post.
Where and when it Arose.-In the case of Perhlad Sein vs. Rajendra Kishore Sing, 12 Moore, 292; 12 W. R., 18; in which their Lordships of the Privy Council seemed to hold that a Court, under section 32, Act VIII of 1859, would be justified in compelling the plaintiff to satisfy it that his right of action was not barred ; and in Saluji Kesraji vs. Rajsangji, 2 Bom., 162 (approved of in Balava vs. Shidgouda, 7 Bom., 101), Couch, C. J., said "Section 32 directs that if, on the face of the plaint ....... it shall appear to the Court that the subject-matter of the suit does not constitute a cause of action, or that the right of action is barred by lapse of time, the Court shall reject the plaint. The words are imperative and appear to impose on the Court, before defendant is called upon to state his defence, the duty of taking any objection that may exist in point of law to the plaintiff's claim not merely apparent on the plaint, but which may be elicited by questioning the plaintiff.". The words of cl. (c), section 54 are also o'k., CIV. P.