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Demurer, doctrine of

AIR 2006 SC 3672

Para 13: The plea raised by the contesting respondents is in fact a plea of demurrer. Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason why the opposite party should not be allowed to proceed further.

In O.N. Bhatnagar V/s. Smt. Rukibai Narsindas and others it was held that the appellant having raised a plea in the nature of demurrer, the question of jurisdiction had to be determined with advertence to the allegations contained in the statement of claim made by respondent 1 u/s. 91(1) of the Act and those allegations must be taken to be true.

In Roop Lal Sathi V/s. Nachhattar Singh Gill, it was observed that a preliminary objection that the election petition is not in conformity with Sec. 83(1)(a) of the Act i.e. it does not contain the concise statement of the material facts on which the petitioner relies, is but a plea in the nature of demurrer and in deciding the question the court has to assume for this purpose that the averments contained in the election petition are true.

Reiterating the same principle in Abdulla Bin AN and others V/s. Galappa and others, it was said that there is no denying the fact that the allegations made in plaint decide the forum and the jurisdiction does not depend upon the defence taken by the defendants in the written statement.

In Exphar Sa and another V/s. Eupharma Laboratories Ltd. and another, it was ruled that where an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true.

The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In this case the decision of the High Court on the point of the jurisdiction was set aside as the High Court had examined the written statement filed by the respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of Delhi High Court and also that the respondent no. 2 did not carry out business within the jurisdiction of the said High Court. Following the same principle in Indian Mineral & Chemicals Co. and others V/s. Deutsche Bank, it was observed that the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on the point of demurrer.

Para 14: The principle underlying Cl. (d) of Or. VII R. 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property V/s. State Bank of India Staff Association, where it was held as under in para 10 of the report: -

"10. Clause (d) of Or. 7 R. 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Or. 7 R. 11 of the Code of Civil Procedure. Clause (d) of R. 11 of Or. 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."

It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 of the Code of Civil Procedure . The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by sub-rule (d) of Or. VII R. 11 of the Code of Civil Procedure, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the company petition was barred by limitation has to be examined by looking into the averments made in the company petition alone and any affidavit filed in reply to the company petition or the contents of the affidavit filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the company petition cannot at all be looked into.



Sandeep Jalan

Advocate

Law Referencer: https://www.vakeelkanumber.com/

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