Himachal Pradesh High Court
Surjeet Singh vs Ankush Thakur & Anr on 5 January, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 603 of 2022
Reserved on:29.12.2023
Date of Decision: 05.01.2024
.
_______________________________________________________
Surjeet Singh .......Petitioner
Versus
Ankush Thakur & Anr. ... Respondents
_______________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
of
For the Petitioner: Mr. Neeraj Gupta, Senior Advocate with Ms.
Rinki Kashmiri, Advocate.
For the Respondents: Mr. Ajay Kumar, Senior Advocate with Mr.
Sunny Modgil, Advocate.
rt
_______________________________________________________
Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated
25.11.2022, passed by learned Civil Judge, Court No.II, Amb, District
Una, Himachal Pradesh, whereby an application under Order 7 Rule
11 CPC in Civil Suit No.132-I-2021, having been filed by the
petitioner/ defendant (hereinafter referred to as the defendant) for
rejection of plaint, came to be dismissed, defendant has approached
this Court in the instant proceedings filed under Article 227 of the
Constitution of India, praying therein to set-aside aforesaid order and
allow the application filed under Order 7 Rule 11 CPC
2. Precisely, the facts of the case, as emerge from the
record are that the respondents-plaintiffs(hereinafter referred to as
1
Whether the reporters of the local papers may be allowed to see the judgment?
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the plaintiffs) filed a suit for specific performance of contract/
agreement of sale dated 17.09.2015 with regard to share of defendant
in the land measuring 00-02-97 hectares, comprised in Khewat
.
No.435, Khatauni No.443 and Khasra Nos. 1241, 1242 and 1243 as
entered in the jamabandi for the year 2020-2021, situate at Partap
Nagar Amb, Tehsil Amb, District Una, Himachal Pradesh alongwith
shop marked by letter A, B, C, D and in the alternative, suit for
of
recovery of Rs. 5,00,000/- with interest. Besides above, plaintiffs also
prayed for decree of permanent injunction, restraining the defendant
rt
from forcibly ousting the plaintiff, taking forcible possession, causing
any damage in any manner whatsoever to the ground floor shop
marked by letter A, B, C, D and first floor room marked by letter E, F,
G, H as shown in the site plain of the plaintiff situate on the part of the
suit land, as detailed hereinabove.
3. Alongwith aforesaid suit, plaintiffs also filed an application
under Order 39 Rule 1 and 2 CPC for ad-interim injunction, which
came to be disposed of with the passing of order dated 5.10.2021,
whereby Court below directed the parties to maintain status quo qua
nature and possession of the suit property. Since despite there being
aforesaid status quo order, defendant forcibly entered in the shop and
blocked the water supply pipes and also put his lock in front side
shutter, they filed an application under Section 151 CPC for police
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assistance (Annexure P-5). Vide order dated 25.11.2022, learned
Civil Judge(II), Amb, District Una, H.P., while directing the defendant
to open the lock, directed the SHO, police Station, Amb to provide
.
necessary assistance to maintain the situation of law and orders
(Annexure P-7).
4. Before written statement, if any, could be filed on behalf
of
of the defendant to the main suit, he filed an application under Order 7
Rule 11 CPC (Annexure P-2), praying therein for rejection of plaint
primarily on two grounds i.e. (i) suit is barred by limitation and;(ii)
rt
non-affixation of requisite Court fee. Defendant averred in the
application that though he does not admit the agreement to sell
alleged to have been executed interse him and the plaintiffs for sale of
his share in the suit land, as detailed hereinabove, but even otherwise
perusal of agreement placed on record, reveals that the sale deed, if
any, was to be executed on or before 31.12.2015 and the limitation
period to enforce the alleged agreement was uptil 30.12.2018. He
alleged that since suit came to be filed in the year, 2021, plaint
deserves to be rejected in terms of provision contained under Order 7
Rule 11 CPC. Besides above, it also came to be averred in the
application filed on behalf of the defendant that as per own case of
the plaintiffs suit for the purpose of court fee and jurisdiction qua the
relief of specific performance though was valued at Rs. 5 lakh, but yet
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no requisite court fee was affixed/ paid and as such, suit is barred
under Order 7 Rule 11(C) CPC.
.
5. By way of reply to the application (Annexure P-3),
plaintiffs refuted the claim made in the application. Though, they
admitted that sale deed was to be executed on or before 31.12.2015
as per terms and conditions contained in the same, but claimed time
of
stipulated in agreement to sell was repeatedly extended on the oral
request of the defendant, who on one pretext or other delayed the
execution of sale deed and finally in the month of July, 2021 refused
rt
to execute the sale deed in terms of aforesaid agreement to sell.
While responding to the second objection with regard non-affixation of
requisite court fee, plaintiffs averred in the reply that in case court
comes to the conclusion that there is deficiency in court fee, plaintiffs
cannot be non-suited without granting time to fulfill the deficiency of
Court fee.
6. On the basis of aforesaid pleadings adduced on record
by the respective parties, learned Court below vide order dated
25.11.2022, rejected the application by holding that in case of sale of
moveable property time is not essence of the contract. Besides
above, learned Court below also held in the impugned order that
question of limitation being mixed question of law and fact deserves to
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be decided on the totality of pleadings as well as evidence led on
record. In the aforesaid background, defendant has approached this
Court in the instant proceedings, praying therein to set aside
.
aforesaid order and allow his application for rejection of plaint filed
under Order 7 Rule 11 CPC.
7. Precisely, the grouse of the petitioner-defendant as has
of
been highlighted in the ground of the petition and further canvassed
by Mr. Neeraj Gupta, learned Senior Counsel, is that when it is
specifically provided in the agreement to sell that sale deed shall be
rt
executed on or before 31.12.2015 and after expiry of aforesaid date,
no steps, if any, were taken by the plaintiffs within specified period of
three years for filing the suit for specific performance, nothing was
much left to be decided by the Court on the basis of evidence, if any,
permitted to be led on behalf of the defendant qua question of
limitation. While making this Court peruse Article 54 of Limitation
Act,1963, Mr. Gupta, vehemently argued that suit for specific
performance of contract could be filed within a period of three years
from the date fixed for the performance, or, if no such date is fixed
limitation commence from the date plaintiff gets notice that
performance is refused. Mr. Gupta, vehemently argued that though
agreement to sell dated 17.09.2015 has not been admitted by the
defendant, but even for the sake of argument, if it is accepted that
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same was executed interse parties, sale deed in terms of aforesaid
agreement to sell was to be executed on or before 31.12.2015. He
submitted that since sale deed was not executed on or before
.
aforesaid date, suit for specific performance of the agreement to sell
could be filed within a period of three years from the date specified in
the agreement to sell for execution of sale deed. He submitted that
bare perusal of agreement to sell, nowhere suggests that after
of
31.12.2015, parties had ever agreed for extension of time or aforesaid
date given for execution of time was ever altered. Mr. Gupta, further
rt
submitted that there is no document, worth credence, available on
record suggestive of the fact that after execution of aforesaid
agreement to sell dated 17.09.2015, fresh or supplementary
agreement to sell was ever executed interse defendant and plaintiffs,
thereby agreeing to extend the date for execution of sale deed. Mr.
Gupta, however fairly admitted that deficiency, if any, in Court fee can
be made good after filing of the suit on the objection being raised by
opposite party or order passed by the Court and as such, he does not
press that issue. He placed reliance upon the judgment rendered by
Hon'ble Apex Court in Ahmadsahab Abdul Mulla (2)(dead) vs.
Bibijan and others, (2009) 5 Supreme Court Cases 462.
8. To the contrary, Mr. Ajay Kumar Sood, learned Senior
counsel duly assisted by Mr. Sunny Modgil, Advocate, representing
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the plaintiffs, supported the impugned order. Mr. Sood, vehemently
argued that though there is no document suggestive of the fact that
time mentioned in the agreement to sell was extended, but averments
.
contained in the plaint clearly reveals that after 31.12.2015, repeated
requests were made by the plaintiffs to the defendant for execution of
sale deed, but on one pretext or other, same was delayed. While
referring to the averments contained in the plaint Mr. Sood, further
of
argued that defendant after having received substantial amount failed
to get the sale deed executed on one pretext or other. He submitted
rt
that repeatedly defendant assured the plaintiffs that he shall get the
sale deed executed in terms of agreement to sell and as such, it
cannot be said that time given in the agreement to sell was never
extended. He submitted that there may not be written document for
extension of time, but time can be orally extended, which in fact in the
present case has been done by the defendant. He submitted that
since plaintiffs have taken specific plea with regard to oral extension
of time given by the defendant and the factum of execution of sale
deed has not been seriously disputed by the defendant, question of
limitation, if any, can only be decided during trial on the basis of
evidence to be led by the parties. Otherwise also, question of
limitation being pure question of facts and law cannot be decided
merely on the basis of pleadings. Lastly, Mr. Sood, further argued
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that suit/plaint sought to be rejected in terms of provisions contained
under Order 7 Rule 11 CPC is not only for specific performance of
agreement to sell dated 17.09.2015, but same is also for permanent
.
injunction, restraining the defendant from forcibly ousting the plaintiffs
or taking possession of the shop as well as room on the first floor. He
further submitted that it is well settled that plaint cannot be rejected
partially because in that event another relief specifically with regard to
of
permanent injunction would become redundant and plaintiffs despite
there being in possession of the suit property would be ousted merely
rt
on the basis of frivolous pleas raised by the defendant.
9. In support of aforesaid submission, learned Senior
counsel representing the plaintiffs have placed reliance upon the
following judgments passed by the Hon'ble Apex Court i.e. (2022) 7
Supreme Court Cases 731, titled Sri Biswanath Bank and another
vs. Sulanga Bose and others, (2006)5 SCC 661, titled Balasaria
construction (P) Ltd. versus Hanuman Seva Trust and others,
and (2004) 1 SCC 769, titled Union of India and another vs. Sohan
Lal Puglia.
10. Having heard learned Senior counsel for the parties and
perused material available on record vis-à-vis reasoning assigned in
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the impugned order, this Court finds no illegality and infirmity in the
same and as such, no interference is called for.
.
11. Bare perusal of provision contained under Order 7 Rule
11 CPC, clearly suggests that plaint can be rejected when 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
of
within a time to be fixed by the court, fails to do so; where the relief
claimed is properly valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the court
rt
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; and where the plaintiff fails to comply
with the provision of Rule 9, which obligate the plaintiff to make
available copies of plaint alongwith requisite fee to the court for
service of summons on the defendant.
12. Admittedly, in the case at hand, prayer for rejection of
plaint on behalf of the defendant came to be raised in terms of
provision contained under Order 7 Rule 11(d) CPC i.e. plaint is barred
by limitation or any law. Besides above, defendant also sought
rejection of plaint in terms of provision contained in order 7 Rule
11(ac) i.e. non-affixation of requisite court fee. Since Mr. Gupta has
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not pressed the second ground with regard to non-affixation of
requisite court fee, this Court would confine itself to the finding
returned by the trial court with regard to plea of limitation raised by the
.
defendant.
13. Admittedly, in the case at hand, plaintiffs by way of suit
prayed for specific performance of contract/agreement of sale dated
of
17.09.2015, wherein admittedly parties agreed to get the sale deed
executed on or before 31.12.2015. It is also true that apart from
aforesaid agreement to sell, there is no document adduced on record
rt
by the plaintiffs suggestive of the fact that aforesaid time stipulated in
the agreement to sell dated 17.09.2015 was ever extended. However,
it has been categorically averred in the plaint that pursuant to
execution of agreement to sell dated 17.09.2015, whereby defendant
allegedly agreed to sell his total share in the land measuring 00-02-97
hectares, comprised in Khewat No.435, Khatauni No.443 and Khasra
Nos. 1241, 1242 and 1243 to the plaintiffs, who otherwise being
tenant and lessee is/was in possession of the property was also
handed over the formal possession at the time of execution of sale
agreement. Perusal of agreement to sell, as detailed hereinabove,
reveals that defendant agreed to sell his share, as detailed
hereinabove, for sum of Rs.5,50,000/- and on 17.09.2015, he
received earnest money of Rs.500000/- in advance and remaining
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sum of Rs. 50,000/- was agreed to be paid/received at the time of
execution of registration of sale deed.
.
14. Precisely, the case of the defendant as has been setup in
the application under Order 7 Rule 11 CPC is that period of limitation
for filing suit for specific performance was three years in terms of
provision contained under Article 54 of the Limitation Act and
of
aforesaid time was not extended and allegedly defendant had not
executed the agreement to sell on or before 31.12.2015 in terms of
agreement of sale dated 17.09.2015, suit, if any, by plaintiffs could be
rt
filed within a period of three years i.e. on or before 30.12.2018. As per
plaintiffs, though there was no written extension of time after
execution of agreement of sale dated 17.09.2015, wherein admittedly
parties agreed to get the sale deed executed on or before 31.12.2015,
but repeatedly defendant assured the plaintiffs to get the sale deed
registered. In nutshell, case of the plaintiffs is that though there may
no document suggestive of extension of time, but repeatedly time was
extended orally by the defendant, as averred in the plaint.
15. At this stage, it would be apt to take note of Article 54 of
the Limitation Act hereinbelow:-
For specific Three years. The date fixed for the
performance of a performance, or, if no such date
contract is fixed, when the plaintiff has
notice that performance is
refused.
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16. Bare perusal of aforesaid provision clearly provides that
limitation for filing suit for specific performance is three years and time
from which period begins to run is the date fixed for performance or if
.
no such date is fixed, limitation would start running from the date
when the plaintiff gets the notice that performance has been refused
by the opposite party.
of
17. No doubt, in the instant case, there is a condition in
agreement of sale dated 17.09.2015 that sale deed qua the land, as
detailed hereinabove, shall be executed on or before 31.12.2015,
rt
meaning thereby period of limitation for filing suit for specific
performance is/ had to commence after expiry of three years from the
date given in the agreement to sell dated 31.12.2015. Second
contingency/ situation, where no such date is fixed would only arise
when there is no fixed date of performance is given in the agreement
to sell.
18. Precisely, the case of the defendant is that once specific
date is given in the agreement to sell, limitation would start running
from the date of expiry of three years from the date given in the
agreement to sell. Though, having taken note of provision contained
under Article 54 vis-à-vis specific date given in the agreement to sell
dated 31.12.2015, there appears to be force in the submission of Mr.
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Neeraj Gupta, learned Senior counsel for the defendant, but bare
perusal of pleadings contained in the plaint clearly reveals that though
there was a specific date given in the agreement to sell for execution
.
of agreement of sale, but after expiry of date given in the agreement
to sell, repeatedly assurance came to be given by the defendant for
execution of sale deed in terms of agreement to sell, meaning thereby
there was oral extension of time on behalf of the defendant, if it is so,
of
date for execution of agreement of sale given in the agreement to sell
would become irrelevant and in that situation, second
rt
situation/condition given in Article 54 of the Act, which provides that
when there is no fixed date for performance, period of limitation
would start from the date of refusal came to the notice of the plaintiff,
would come into the play.
19. In the instant case, as per the averments in the plaint,
refusal to perform in terms of agreement to sell dated 31.12.2015
came to be notice of the plaintiffs in the month of January, 2021,
whereafter immediately in the month of September, 2021 plaintiffs
filed the suit for specific performance.
20. At this state, it would be apt to take note of the judgment
relied upon by learned Senior counsel representing the defendant i.e.
Ahmadsahab Abdul Mullah (2)(dead) vs. Bibijan and others,
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(2009) 5 Supreme Court Cases 462, wherein while interpreting the
expression i.e. "date fixed for the performance". Hon'ble Apex Court
held that there are two limbs of Article 54, when date is fixed it means
.
that there is a definite date fixed for doing a particular act. However,
whether the date for the performance was fixed or not is to be
established with reference to materials and evidence brought on
record. By placing heavy reliance upon para -11 of aforesaid
of
judgment, Mr. Neeraj Gupta, learned senior counsel for the defendant
argued that "date fixed for the performance" is a crystallized notion,
rt
meaning thereby when date is fixed it means that there is a definite
date fixed for doing a particular act and if it is so, there is no question
of finding out an intention from other circumstances.
21. Before ascertaining the correctness of aforesaid
submission of learned Senior counsel, it would be apt to take note of
following para of the judgment hereinbelow:-
"11. The inevitable conclusion is that the expression
date fixed for the performance' is a crystallized notion.
This is clear from the fact that the second part "time
from which period begins to run" refers to a case
where no such date is fixed. To put it differently, when
date is fixed it means that there is a definite date fixed
for doing a particular act. Even in the second part the
stress is on `when the plaintiff has notice that
performance is refused'. Here again, there is a definite
point of time, when the plaintiff notices the refusal. In
that sense both the parts refer to definite dates. So,
there is no question of finding out an intention from
other circumstances.
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12. Whether the date was fixed or not the plaintiff had
notice that performance is refused and the date thereof
are to be established with reference to materials and
evidence to be brought on record. The expression
`date' used in Article 54 of the Schedule to the Act
.
definitely is suggestive of a specified date in the
calendar. We answer the reference accordingly. The
matter shall now be placed before the Division Bench
for deciding the issue on merits.
22. There cannot be any quarrel with the aforesaid
proposition of law laid down by Hon'ble Apex Court, this Court in
of
earlier part of the judgment has already held that Article 54 is in two
parts, first part deals with a situation where specific date is given for
performance of the Act required to be done in terms of agreement and
rt
second part deals with the situation where no specific date is given in
the agreement to sell for execution of sale deed. In first situation,
period of limitation, which is three years from the date of performance
given in the agreement to sell and in second situation, period of
limitation would start/run from the date of notice/refusal to perform in
terms of agreement to sell on the part of opposite party. In the
aforesaid judgment, Hon'ble Apex Court while interpreting "date is
fixed" held that though "date is fixed" means that there is a definite
date fixed for doing a particular act, but the fact that whether date for
performance was fixed or not is to be established with reference to
materials and evidence brought on record. Whether the date was
fixed or not or the plaintiff had notice that performance is refused, are
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the questions to be decided with reference to materials and evidence
led on record by the respective parties.
.
23. In the instant case, though bare perusal of agreement to
sell dated 15.12.2015 suggests that there was a specific date given in
the agreement to sell for specific performance of contract, but as has
been noticed hereinabove, it has been specifically averred in the
of
plaint that aforesaid date was extended orally on many occasion by
the defendant.
24.
rt
Plaintiff in the plaint may not have stated in clear words
that aforesaid date or time to execute sale deed was extended, but if
pleadings in plaint are read in its entirety it clearly suggests that
despite there being repeated requests made by the plaintiffs,
agreement to sell was not executed within time given in the
agreement to sell and thereafter, on one pretext or other, time was
taken by the defendant for execution of sale deed. Needless to say,
by now it is well settled that at the time of considering prayer for
rejection of plaint in terms of Order 7 Rule 11 CPC, court is only
required to see averments contained in the plaint as well as document
annexed therewith.
25. No doubt, agreement to sell annexed with the plaint
suggests that there was a specific date given for the performance of
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the contract, but plaint, if read in its entirety, suggest that though in
terms of agreement of sale dated 17.09.2015 fixed date was given for
execution of sale deed but such date was extended repeatedly on the
.
request of defendant, who though allegedly received substantial
amount at the time of execution of agreement to sell, but failed to
execute the sale deed on one pretext or other. At the time of
considering prayer made in the application under Order 7 Rule 11
of
CPC, Court cannot ignore the averments contained in the plaint,
rather same being relevant for adjudication of the application filed
rt
under Order 7 Rule 11 CPC are required to be taken into
consideration. Whether averments contained in the plaint are correct
or not would be decided by the competent court of law on the basis of
totality of pleadings and evidence led on record by the respective
parties during trial. Had plaintiffs not averred in the plaint that despite
there being repeated requests, agreement to sell was not executed
within the time stipulated in the agreement to sell and repeatedly time
was taken by defendant for execution of sale deed, Mr. Neeraj Gupta,
learned Senior counsel would have right in contending that court
below had no occasion to return a finding that question of limitation
being question of fact and law cannot be decided without affording
opportunity of leading evidence to the parties to the lis.
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26. At this stage, it would be apt to take note of judgment
passed by Hon'ble Apex Court in Balasaria Construction (P) Ltd.
versus Hanuman Seva Trust and others, (2006)5 Supreme Court
.
Cases 658, wherein Hon'ble Apex Court held that question of
limitation is a mixed question of law and fact and suit cannot be
dismissed as barred by limitation without proper pleadings, framing of
issue of limitation and recording of evidence. The relevant para Nos. 4
of
to 8 of aforesaid judgment are as under:-
"4. This case was argued at length on 30-8-2005. Counsel
rt
appearing for the appellant had relied upon a judgment of this
Court in N.V. Srinivasa Murthy v. Mariyamma[9] for the
proposition that a plaint could be rejected if the suit is ex facie
barred by limitation. As against this, counsel for the
respondents relied upon a later judgment of this Court in
Popat and Kotecha Property v. State Bank of India Staff
Assn.[10] in respect of the proposition that Order 7 Rule 11(d)
was not applicable in a case where a question has to be
decided on the basis of fact that the suit was barred by
limitation. The point as to whether the words "barred by law"
occurring in Order 7 Rule 11(d) CPC would include the suit
being "barred by limitation" was not specifically dealt with in
either of these two judgments, cited above. But this point has
been specifically dealt with by the different High Courts in
Mohan Lal Sukhadia University v. Priya Soloman[11], Khaja
Quthubullah v. Govt. of A.P.[12], Vedapalli Suryanarayana v.
Poosarla Venkata Sanker Suryanarayana[13], Arjan Singh v.
Union of India[14] wherein it has been held that the plaint
under Order 7 Rule 11(d) cannot be rejected on the ground
that it is barred by limitation. According to these judgments the
suit has to be barred by a provision of law to come within the
meaning of Order 7 Rule 11 CPC. A contrary view has been
taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd.[15],
National Insurance Co. Ltd. v. Navrom Constantza[16], J.
Patel & Co. v. National Federation of Industrial Coop. Ltd.[17] and State Bank of India Staff Assn. v. Popat & Kotecha Property. The last judgment was the subject-matter of challenge in Popat and Kotecha Property v. State Bank of ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 19 India Staff Assn. This Court set aside the judgment and held in para 25 as under:
"25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo .
case[18] the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a of case where the suit from statement in the plaint can be said to be barred by law. 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. This is not so in the present case."rt
5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyamma and Popat and Kotecha Property v. State Bank of India Staff Assn. the Bench referred† the following question of law for consideration to a larger Bench:
"Whether the words 'barred by law' under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation.""
6.Before the three-Judge Bench, counsel for both the parties stated as follows:
"...It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case."
7. In view of the statement made by the counsel for the parties, the Bench held that the question referred to the larger Bench was academic so far as this case is concerned and accordingly declined to decide the question. The case was ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 20 sent back to the Bench for disposal on merits based on the facts of the case.
8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the .
judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by the limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the of view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure."
27. Reliance is also placed upon the judgment rendered by rt Hon'ble Apex Court in Civil Appeal No.4766 of 2001, titled as Ramesh B.Desai vs. Bipin Vadilal Mehta, decided on 11.07.2006, wherein it came to be held that a plea of limitation is a mixed question of law and fact, and therefore unless it becomes apparent from the reading of the petition that the same is barred by limitation, the petition/ plaint cannot be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure. Relevant para Nos. 15 and 16 of aforesaid judgment are as under:-
"15. The principle underlying Clause (d) of Order VII Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 where it was held as under in para 10 of the report: -
"10. Clause (d) of Order 7 Rule 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 Order 7 Rule 11 CPC. Clause (d) of Rule 11 of ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 21 Order 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."
16. 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 CPC. 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 Order VII Rule 11 CPC, 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 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 rt Application No. 113 of 1995 filed by the respondents seeking dismissal of the Company Petition cannot at all be looked into.
28. It is quite apparent from the reading of aforesaid judgment that in order to examine whether the plaint is barred by any law, as contemplated by sub-rule (d) of Order 7 Rule 11 CPC, 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.
29. Reliance is also placed upon the judgment passed by Hon'ble Apex Court in Shakti Bhog Good Industries Limited versus Central Bank of India and another, passed in Civil Appeal No.2514 of 2020, wherein it has been held as under:-
::: Downloaded on - 08/01/2024 20:36:33 :::CIS 22"6. The central question is: whether the plaint as filed by the appellant could have been rejected by invoking Order VII Rule 11(d) of the CPC? Indeed, Order VII Rule 11 of the CPC gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation.
.
This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.2. In paragraph Nos. 13 to 20 of the reported decision, the Court observed as follows:
"13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:
"(a) where it does not disclose a cause of action;
of
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a 2 (2007) 10 SCC 59 time to be fixed by the court, fails to do so;
rt
(c) where the relief claimed is properly valued but the plaint is written 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;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule
9."
14. In Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that "9. ... the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power ... at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage,..." (SCC p. 560, para 9).
15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 23 cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
16. "The trial court must remember that if on a meaningful--no formal--reading of the plaint it is manifestly vexatious and meritless in .
the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC." (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.).
17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court of in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC rt 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 was applicable.
19. In Sopan Sukhdeo Sable v. Asstt. Charity Commr. [(2004) 3 SCC 137] this Court held thus:(SCC pp. 14647, para 15) "15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various pa- ragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permiss- ible to cull out a sentence or a passage and to read it out of the con-
text in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its appar-
ent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technical- ities."
20. For our purpose, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 24 person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order."
.
On the same lines, this Court in Church of Christ Charitable Trust & Educational Charitable Society vs. Ponniamman Educational Trust3, observed as follows:
"10 ... It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, of failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the rt issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9) "9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the 3 (2012) 8 SCC 706 averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and
(d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court."
It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 25 decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100.
.
30. Bare reading of aforesaid judgment clearly reveals that limitation is pure question of law and from the pleadings itself it becomes apparent that suit is barred by limitation, then of course, it is the duty of the court to decide limitation at the outset even in the absence of provisions contained under Order 7 Rule 11-D CPC of However, in cases where the question of limitation is a mixed question of law and facts and suit does not appears to be barred by rt limitation on the face of it then fact necessary must be pleaded and issue raised and then proved.
31. Most importantly, it has been held in all the aforesaid judgments that in order to examine whether the plaint is barred by limitation, averments made in the plaint alone have to be seen and they are presumed to be correct. It is not permissible to look into pleas raised in the written statement or to any piece of evidence.
Since in the case at hand, plaintiffs in the plaint have attempted to carve out a case that after expiry date for performance of agreement to sell repeatedly time was extended on one pretext or other by the defendant, question of limitation being mixed question of fact and law cannot be decided without framing of issues and leading of evidence.
Hence, no illegality can be said to have been committee by the Court ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 26 below while passing the impugned order , thereby rejecting the application under Order 7 Rule 11 CPC .
32. There is another aspect of the matter, which also needs to be taken note of. Admittedly, in the case at hand, apart from the suit for specific performance plaintiff has also prayed for decree of permanent injunction, restraining defendant from forcibly ousting the of plaintiff, forcibly ousting the plaintiff, taking forcible possession, causing any damage in any manner to the suit property. It is clearly averred in the plaint that suit property, which allegedly agreed to be rt sold by defendant to the plaintiffs in terms of agreement of sale dated 17.09.2015 is/was in possession of the plaintiffs in the capacity of tenant/lessee. It is also averred in the plaint that as per agreed terms plaintiffs were to pay rent qua the suit property to the defendant, which was allegedly being paid, but yet defendant instead of executing the sale deed in terms of agreement to sell made an attempt to oust him from the property forcibly. Prayer made on behalf of the defendant to reject the plaint in terms of Order 7 Rule 11(d) CPC on the ground of limitation, if permitted would seriously prejudice plaintiff, who alongwith suit for specific performance has also prayed for decree of permanent injunction on the ground that he is in possession of suit property in the capacity of tenant/lessee and paying rent regularly to the defendant.
::: Downloaded on - 08/01/2024 20:36:33 :::CIS 2733. It has been repeatedly held that only in case where on the face of the plaint it is seen that suit is barred by limitation then and then only court can reject the plaint invoking provisions of Order .
7 Rule 11-B CPC on the ground of limitation but definitely prayer for rejection of plaint under Order 7 Rule 11(b) cannot be accepted by reading few lines and passages ignoring other relevant part of the plaint when alongwith the suit for specific performance prayer has of been also made for permanent injunction and it is averred that plaintiffs are in possession of the suit property pursuant to the rt agreement and they are in continuous possession, suit for decree of permanent injunction cannot be said to be barred by limitation and it is also settled that plaint cannot be rejected partially.
34. Reliance in this regard is placed upon the judgment rendered by Hon'ble Apex Court in (2022) 7 Supreme Court Cases 731, titled Sri Biswanath Bank and another vs. Sulanga Bose and others,, wherein it is has been held as under:-
"7. Now, so far as the issue whether the suit can be said to be barred by limitation or not, at this stage, what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected under Order VII Rule 11(d) CPC on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 28 observed and held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph .
21, it is observed and held as under:-
"21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took of steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and rt incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint."
7.1 From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint. 7.2 Applying the law laid down by this Court in the case of Ram Prakash Gupta (supra) to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. The necessary averments in the plaint on the cause of action are in paragraphs 6, 7 and 10, which read as under:-
"6. That the aforesaid defendant now consequent upon the escalation of the land value of the area has been more aggrieve to drive out the plaintiffs from the suit property by hook and crook and various insertion in the newspapers dated 10.8.2010, 24.8.2010 at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph, coming up from the different parts with intent to purchase and get transfer of the property by the third party.::: Downloaded on - 08/01/2024 20:36:33 :::CIS 29
7. That the aforesaid defendant and his men and agent concretely on 29.8.2010 tried to forcefully enter into the suit property and manhandle the "Durwan" but owing to the resistance the defendant did not succeed in their attempt to dispossess, but defendant with his associate is determined to dispossess the plaintiffs from his lawful .
possession by any means even by using force and violence. That the proforma defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter.
10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court."
8. In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in of paragraph 4 and has not considered the entire plaint averments.
9. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this rt Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act.
10. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially.
11. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC.
35. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds no illegality and infirmity in the impugned order passed by learned ::: Downloaded on - 08/01/2024 20:36:33 :::CIS 30 Civil Judge, which otherwise appears to be based upon proper appreciation of facts as well as law on the point and as such, same is upheld. The present petition is dismissed alongwith pending .
applications, if any.
(Sandeep Sharma), Judge January 05, 2024 of (shankar) rt ::: Downloaded on - 08/01/2024 20:36:33 :::CIS