010-NLR-NLR-V-14-MOHIDEEN-v.-GNANAPRAKASAM-et-al.pdf
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Present: Grenier J,
MOHIDEEN v. GNANAPRAKASAM et al126—C. R. Jaffna, 7,978.
Plain(^Acceptance of—Court has no power to reject plaint after service ofsummon# on defendant—Civil Procedure Code, s. 40.
It is not competent for a Judge to reject a plaint after havingonce accepted it and ordered summons, if the summons had beenduly served; he should leave it to the defendants to raise anyquestions as to its legal sufficiency to support the intended action.
JJ'HE facts appear sufficiently from the judgment.
tfqfprvasingham^ for appellant.—The plaint when once acceptedand filed cannot be rejected. Section 46, Civil Procedure Code,gives the Court power to reject a plaint only before it is allowed tobe filed. The Court has no power to reject the plaint after serviceof summons. Counsel cited Fernando v. Soyzax% Ratwatte v. Owen.1
J. Joseph, for the respondent§*=Stetion 46 does not restrict thepower of the Court to rejggt ft plaint after it has been filed. If theplaint h&i been iWp?OE?rly admitted, the Court may reject it at anytime. !l ha§ been held in India that a plaint could be rejected,afteF it has been registered, at any stage of the suit. KenhereSingh v, Abdul Slngh^ Venketesar Tawker v. Rama Samy Chettiar,**Brihama v. Rubisingh/'
Cur. adv. vult.
June 20, 1910. Grenier J.—
The question debated on this appeal was whether it was com-petent for the Commissioner, after having once accepted the plaintand ordered summons, which has been duly served, to reject it. Ifthe order accepting the plaint was one which improvide emanavit, 1cannot see any objection to such a course before service of summons,because the order would ex necessitate be in the nature of an ex parteorder, which can be recalled without involving any question of notice.In the present case certain proceedings have followed upon theacceptance of the plaint, one of the defendants having asked fortime to file answer, and another defendant having given a proxy toa proctor, which, in my opinion, render it desirable that the suffi-ciency or otherwise of the plaint, which has no defects on the face
*(me) 2 X. L. R. 40.*(1890) /. L. R. 22 All. 553.
*(1896) 2 X. L. R. 141.*(1895) I. L. R. 18 Mad. 338.
4 (WOO) l. L. R. 27 Cal.. 376.
Voi.. XIV,*
June 20,1010
•J. X. A tttS48 111 49)
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June, 20J910Grenibk J.
Mohideen v.Qnanapra•
ktiMiin
of it, should be contested and determined in the regular way. TheIndian authorities to which I was referred by respondents' counseldo not help me. According to the judgment of Rampini andWilkins JJ., the Judges of the High Court of Calcutta and Allaha-bad do not appear to have agreed as to whether when a suit has oncebeen registered the plaint could be rejected. I do not know whatthe process Of registration in the Indian Courts is, or whethersummons had or had not been issued and served in the case cited.The local cases of Fernando v. Soyza' and Ratwatte v Owen1 arefairly in point.
To me it seems only reasonable that where a plaint which is notdefective ex facie is presented and accepted, and summons is dulyserved on the defendants, the Court loses its control over the docu-ment, and should leave it to the defendants to raise any questionsas to its legal sufficiency to support the intended action. If aftersummons has been served, and the defendants have been put to theexpense of retaining and instructing pleaders, the Court is able tomake order rejecting a plaint, then it necessarily follows that, as theCourt cannot in the circumstances make any order as to costs, thedefendants will, firstly, by the action of the plaintiff in presenting abad plaint, and secondly, by the action of the Court in acceptingit and ordering summons, be absolutely without remedy in thematter of costs and expenses incurred by him. And that is whathas actually happened in this case. The Court, has rejected theplaint and has given no costs, for the very good reason that it hadno power to do so. In my opinion the order appealed from iswrong and must be set aside, and the case sent back for the defend-ants to contest the plaintiff’s action in the regular way, by filinganswer and raising proper issues upon the pleadings. There willbe no costs in this Court. The costs in the Court below will abidethe final event.
Appeal allowed.
{isnc) a A l. x. 40.
*(]&9G) 2 Af. L. X. Nt.