IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 10354 of 2009(O) -------------------------- OS.106/2004 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER/DEFENDANT: ------------------------- K.R.JOSEPH @ JOSE PAUL, SOUTHERN STORES OF DISTRIBUTORS, KOTTAYAM. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT/ PLAINTIFF: ------------------------- M/S.VIJAYA MARKETING ASSOCIATES, NEW MARKET ROAD, KOTTAYAM. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10354 of 2009 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.106/04 BEFORE the SUB COURT, KOTTAYAM EXHIBIT P2 : WRITTEN STATEMENT IN O.S.106/04 BEFORE the SUB COURT, KOTTAYAM EXHIBIT P3 : I.A.3531/08 IN O.S.106/04 BEFORE the SUB COURT, KOTTAYAM EXHIBIT P4 : OBJECTION FILED BY THE PLAINTIFF TO P3-IA EXHIBIT P5 : ORDER DTD. 17.02.2009 IN I.A.3531/08 RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.10354 of 2009 --------------------------------------- Dated this 17th day of September, 2010 JUDGMENT Defendant in O.S.No.106 of 2004 of the court of learned Additional Sub Judge, Kottayam is the petitioner before me. That is a suit filed by the respondent for recovery of money from the petitioner alleging that at a time when petitioner was in the service of respondent he used to borrow money from respondent on various dates for which respondent has been maintaining proper accounts and as per that, Rs.2,04,600.74/- is outstanding from petitioner as on 31-03-2002. Respondent alleged that cause of action for the suit arose on 05-04-2002 on which day petitioner left the service of respondent and on 20-11--2002, date of demand of the amount and on several other dates. Petitioner filed written statement denying that respondent has any cause of action against him. He has denied transaction pleaded by the respondent. Petitioner filed I.A.No.3531 of 2008 under Order VII Rules 1 and 3 of the Code of Civil Procedure (for short, “the Code”) with a prayer to reject the plaint contending that plaint does not disclose any cause of action as required by Order VII Rule 11 of the Code. Learned Sub Jude vide Ext.P5, order has dismissed the application. W.P.C.No.10354 of 2009 : 2 : Hence this writ petition. It is contended by learned counsel that the plaint does not disclose any cause of action on the dates mentioned in paragraph 5 of the plaint and that it is not stated on which all dates the alleged transactions took place. Learned counsel invited my attention to the requirement of Order VII, Rule 1(e) of the Code to contend that respondent was bound to state in the plaint facts constituting the cause of action and when it arose. Learned counsel has placed reliance on the decisions in I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Ors. (1998(2) SCC 70) and Saleem Bhai and Ors. Vs. State of Maharashtra and Ors. (2003(1) SCC 557). In response, it is contended by learned counsel for respondent that respondent is basing its claim on a mutual account for which sufficient plea is made in the plaint. A true extract of the account relied on by the respondent is also produced which shows the relevant dates of transactions which should be treated as part of pleadings. 2. True, in the decisions relied on by learned counsel for respondent the Supreme Court has observed that if the plaint itself does not disclose cause of action it is not necessary to ask the defendant to file a written statement. For, Order VII Rule 11 of the Code vests with the court the power to reject the plaint if it does W.P.C.No.10354 of 2009 : 3 : not disclose a cause of action. According to the respondent cause of action has arisen on the dates mentioned in paragraph 9 of the plaint. It is not as if there is no date of cause of action mentioned in the plaint. As rightly argued by the learned counsel for respondent, the documents produced along with the plaint should be treated as part of pleadings. The question whether cause of action pleaded is correct or not, or the suit or any part of the claim made by the respondent is barred by limitation are matters to be decided after trial. In the circumstances revealed from Ext.P1, plaint and the documents produced therewith I am not persuaded to think that it is a case where respondent has to be sent out of the court at the threshold without a trial of the suit. I am not persuaded to accept contention raised by petitioner. 3. Respondent has a contention that it is based on a mutual account that the suit is instituted. But, I do not find any specific plea in the plaint in that regard. Equally, petitioner also has no contention that the suit is barred by limitation. It is a different thing that even in the absence of a plea regarding limitation the court has power to dismiss the suit in view of Section 3 of the Limitation Act. I make it clear that it will be open to the parties to request learned Sub Judge to permit them to amend their W.P.C.No.10354 of 2009 : 4 : pleadings suitably. In the light of what I have stated above, no interference is required with Ext.P5, order. Resultantly with the observation made above, this writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-