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Maintainability Of A Civil/Family Case

Maintainability of a Civil/Family case

While defending a case and filing its reply (Written Statement), it’s an extremely common submission to make that “the case filed by the Plaintiff/Petitioner is not maintainable in the eyes of law”. This submission is find in almost every Written Statement but it’s not backed by any specific provision(s) of law and hence the judges ignore such submission almost every time.

Here I have mentioned how to exactly assess if a civil case is maintainable in the eyes of law or not. Whenever you get any case to defend, then before starting to draft a reply, the first thing to do is to see if the plaint/suit passes the below tests:

1. Check if the plaint/suit has been filed under correct provision of law. If not, then case is liable to be rejected under O. VII, R. 11 (d) of the CPC (The Code of Civil Procedure, 1908) which says that the plaint shall be rejected where it appears from the statement in the plaint to be barred by any law

2. Check if the plaint/suit discloses a cause of action. If not, then case is liable to be rejected under O. VII, R. 11 (a) of the CPC (The Code of Civil Procedure, 1908) which says that the plaint shall be rejected where it does not disclose a cause of action.

3. Check if the plaint/suit has been correctly filed as per the Jurisdiction. This jurisdiction can be pecuniary or as to the place of suing. Make sure to check the relevant provisions of jurisdiction in the act under which the plaint/suit has been filed. For example in Hindu Marriage act, jurisdiction is defined under section 19 of the act. If no jurisdiction is defined in an act, then we go by the jurisdiction as defined in CPC.

4. Check if the plaint/suit has been filed within time as per the Limitations Act, 1963 or as per the time frame defined specifically in an act, like in case of The Negotiable Instruments Act, 1881 where the time frame for filing cheque bounce case is clearly defined under section 138 of the act.

5. Check if the plaint/suit is not barred by the principal of Res judicata, which is defined under section 11 of the CPC as ” No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. “

If you find that the suit/plaint which you have to defend does not pass any of these basic tests, then on the very first hearing, you move an application accordingly to get the case rejected or dismissed. While drafting such an application, these provisions of law as mentioned briefly above, must be read in detail and all the latest judgments on these provisions must also be referred.

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