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DR. RANJEET SINGH versus MS.SAYARA DEVI

High Court of Rajasthan

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DR. RANJEET SINGH v MS.SAYARA DEVI - CFA Case No. 84 of 1992 [2006] RD-RJ 836 (26 April 2006)

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"On a careful consideration of these rival views, I am disposed to accept the latter as the sounder of the two. Order 7 R 11 C.P.C. undoubtedly lays down, inter alia, that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It seems to me, however, that this rule, would be attracted into its full application where the suit as a whole would be so barred, and different considerations may reasonably arise where such a suit happens to be barred against some of the defendants but may still be good, against the others.

With utmost respect, I have not been able to persuade myself to accept the view that even where such a suit may be good against some of the defendants in spite of its being bad against certain others, the whole suit must necessarily be thrown out. This seems to me to be opposed to all considerations of common sense and to the dictates of justice, nor do I think that such a result should be held to be a necessary consequence of the rule as it is generally embodied in clause (d) of Rule 11, and to my mind it is normally intended to be applicable to a case where there is a single plaintiff or a single defendant and a suit by or against him is wholly barred by any law.

Thus, where a plaint does not disclose a right of action against one or some of the defendants but it does against the rest, or where a suit would be barred by law against one or some of the defendants but not against the rest, the just and proper course, in my opinion, should be not to reject the plaint as a whole but to strike out the names of the defendants against whom there is no cause of action or the suit is barred by law and allow it to proceed against the rest. This would of course be subject to the paramount consideration that such a suit, as a matter of substantive law, would be maintainable against the remaining defendants. I hold accordingly." @ B, 7 @, @ ?

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"In the first place defendant 3 is not the proper party to raise it, and in the second place the receivers in our opinion must be deemed to have waived their right to notice. It is open to the party protected by

S.80 to waive his rights, and his waiver binds the rest of the parties. But only he can waive notice, and if that is so, it is difficult to see any logical basis for the position that a party who has himself no right to notice can challenge a suit on the ground of want of notice to the only party entitled to receive it. We think therefore that this ground of attack is not open to defendant 3; and for our view on this point direct support may be obtained from 32 Cal.113"

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"It is an elementary rule in judicial proceedings that nobody can plead jus tertii as a defence. The benefit of the Section 80 is only to the Government and its officers, and not to private parties. It cannot then be availed of by a private party who is made a defendant to the suit along with the State. 7 @ B 3 @ 80 - B 7 7 ?

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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