CPC Mains Questions
Q. Write short notes on the following – Legal representative, Rejection of plaint, Powers of Court to issue commission [MPCJ 2010]
Ans. Legal representative :-
The expression legal representative under section 2 (11) of the CPC has been given a broader connotation than it is understood under the personal laws. It covers following persons-
A person who in law represents the estate of a deceased person.
Any person who intermeddles with the estate of the deceased.
In representative suit, the person on whom the estate devolves on the death of the party so suing or sued.
From above, it emerges that legal representative need not be a legal heir. As far as intermeddling with estate of the deceased is concerned it means that person has some interest in the property of deceased though he may not be the person who represent the estate of deceased such as in post-1956 era a women in possession of the land with limited estate and also de facto guardian of the minor.
Rejection of plaint:-
Under order 7- rule 11 of CPC expression “shall be rejected\” casts a mandatory obligation on the part of the court to reject the plaint either Suo Motu or upon an application on six grounds mentioned in clause (a) to (f). It is relevant to mention that for passing an order under aforesaid provision, it is only the averments of the plaint and the plaint alone which is relevant and have to be considered. It may be passed without hearing the party and even before the written statement is filed as held by Hon\’ble Apex Court in Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557.
Grounds of rejection :- They are as under-
where it does not disclose a cause of action.
where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.
where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.
where the suit appears from the statement in the plaint to be barred by any law.
where it is not filed in duplicate
where the plaintiff fails to comply with the provisions of rule 9 of the CPC.
Powers of Court to issue commission:-
Under section 75 of the CPC read with Order XXVI of the CPC, the court is empowered to constitute commission for various purposes including to examine witnesses, for local investigations etc. As per order XXVI- rule 16 of CPC, such commissioners have following powers—
To examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him.
To call for and examine documents and other things relevant to the subject of inquiry.
At any reasonable time enter upon or into any land or building mentioned in the order.