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E.C.I. Engineering & Construction Co. Limited v/s North East Frontier Railway & Others

    RFA. No. 34 of 2009

    Decided On, 09 November 2021

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

    For the Appellant: K.R. Surana, Advocate. For the Respondents: M. Chatterjee, Advocate.



Judgment Text

1. Heard Mr. G Khandelia, learned counsel for the appellant. None appears for the respondent.

2. This appeal arises out of the order dated 14.08.2008 whereby, the suit of the plaintiff i.e., the appellant was dismissed on the ground of non-compliance of Section 79 of the CPC 1908, and thereby holding that the suit to be barred under the provisions of law under Order VII Rule 11. At the outset when the provisions of Order VII Rule 11 are invoked the plaint at best can be rejected. Be that as it may, as the issue involved in the instant appeal is within the short compass, as to whether, the trial Court was justified in dismissing the suit on the ground of non-compliance of Section 79 of the Code of Civil Procedure.

3. The relevant facts for the purpose of disposal of the instant appeal is that the plaintiff/appellant had instituted a suit being registered and numbered as Money Suit No. 159/2005 against the respondents herein seeking a decree for recovery of an amount of Rs.6,24,42,728/- along with the pre-suit, pendant lite and future interest @ 18% per annum.

4. In the said suit the defendant Nos.1 and 2 filed an application under Order VII Rule 11 for rejection of the plaint for non compliance of Section 79 of the CPC as well as that the affidavit filed in compliance to Order VI Rule 15(4) was contradictory to the provisions of law. Although no written objection was filed, the appellant duly objected to the said petition at the time of hearing. The court below vide an order dated 14.08.2008, rejected the plaint on the ground of non compliance to Section 79 of the CPC and consequently dismissed the suit.

5. For the purpose of adjudication of the instant lis it is relevant to take note of Section 79 CPC which for the sake of convenience is quoted herein below:

Section 79 of Code of Civil Procedure 1908 "Suits by or against Government"

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, the Union of India, and

(b) in the case of a suit by or against a State Government, the State.

6. A perusal of the said section on the face of it could go to show that the said section is procedural in nature and it is a trite principle of law that procedural laws are subservient to the substantive rights of the parties as well as to the interest of justice. In the instant case as could be seen from the impugned order, the defendant No.1 ought to have been named as the "Union of India represented by the General Manager North East Frontier Railway, Maligaon, 781011" instead of that it was mentioned as "The North East Frontier Railway represented by the General Manager (Construction), Maligaon 781011" which in my view was substantial compliance. However, these errors or mistakes which have been committed in drafting of the plaint could have very well be remedied by the Trial Court in exercise of the powers under Order I Rule 10 or even could have permitted the appellant to file an appropriate application under Order VI Rule 17 of the CPC for amending the name of the parties. Instead of doing so, the trial court rejected the plaint.

7. In view of the above, I am of the opinion that it would be in the interest of justice that the impugned order dated 14.08.2008 is interfered with. The appellant is also given the liberty to file an application under Order VI Rule 17 before the trial Court for amending the name of the defendant No.1 in complia

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nce to Section 79 of the CPC. 8. The appellant shall appear before the trial Court on 03.12.2021 and file the appropriate application for amendment of the cause title and pursuant thereto, the trial Court shall take appropriate steps in accordance with law for disposal of the suit. 9. With the above observations, the instant appeal stands allowed of. No costs. Send down the LCR.
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