Shamsher Thakur Vs Kunal Thakur and Ors.

In the light of the averments made in the applications, the same are allowed. The name of deceased respondent No.6 is ordered to be deleted from the array of respondents. The proposed legal representatives are impleaded as respondents No.6(a) to 6(d) in place of the deceased respondent No.6. Delay in filing the applications are condoned and abatement, if any, set aside. Applications stand disposed of.

¶22

CMPMO No.341 of 2020

¶23

By way of this petition, the petitioner has assailed the order passed by the learned Trial Court, in an application preferred by the present petitioner, in terms whereof, the application filed under Order 7 Rule 11 of the CPC, for the rejection of the plaint stands partly allowed.

¶24

Having heard learned counsel for the parties and having carefully gone through the impugned order as well as the other documents appended with the petition, this Court has no hesitation in holding that the impugned order is per se

¶25

3

¶26

perverse.

¶27

The basic principle for the purpose of the

¶28

adjudication of order dated 7 Rule 11 of the Civil Procedure Code as stands spelled out in numerous judgment by the Hon’ble Supreme Court of India has not been taken into consideration by the learned Court below while deciding the application. First principle which has to be followed by a Court deciding an application under Order 7 Rule 11 of the CPC is that the same has to be decided strictly on the basis of the averments made in the plaint and documents, if any, filed alongwith the plaint and the defence of the applicant is not to be taken into consideration at the time of deciding the application. This principle has been violated with impunity by the learned Court below, while deciding this application. The reason as to why this Court is being forced to make these remarks is that a perusal of the impugned order demonstrates that while deciding the application filed under Order 7 Rule 11 of the CPC, learned Court not only framed two issues i.e., issue No.1 whether the suit of the plaintiff is barred by limitation as alleged and issue No.2 whether the suit is barred by

¶29

4

¶30

principal of res-judicata, it thereafter, examined the witnesses of both the sides on the issues framed and took on record documents which were produced on record by the defendants also.

¶31

By no stretch of imagination in the course of the adjudication of an application under Order 7 Rule 11 of the CPC, said procedure could have been adopted by the learned Trial Court. All that learned Trial Court was to do while deciding said application was that it was to test the contents of the application on the basis of the averments made in the plaint and take a call on the application. Rather than, doing this a mini trial was conducted by the learned Trial Court while deciding the application which renders the order per se bad in law.

¶32

Even otherwise, having perused the contents of the plaint and having carefully gone through the application filed under Order 7 Rule 11 of the CPC, this Court is of the view that the plaint does prima facie disclose a cause of action and prima facie it appears to have been filed within limitation in terms of the contents of the plaint and, if according to the

¶33

5

¶34

defendants, the suit is hit by limitation or it discloses no cause of action, then, obviously, this defence can be taken by the defendants in written statement and these issues can be decided by the learned Trial Court but only in the course of trial by permitting the parties to lead evidence with respect to their respective contentions.

¶35

Accordingly, in light of the above observations and in exercise of the power of Superintendence conferred upon this Court under Article 227 of the Constitution of India, the impugned order is set aside in toto and the application filed under Order 7 Rule 11 of the CPC by the present petitioner is also ordered to be dismissed in toto with direction to the

¶36

learned Trial Court to decide the Civil Suit on merit.

¶37

Pending miscellaneous applications, if any, also stand disposed of.

¶38

(Ajay Mohan Goel) Judge

¶39

December 05, 2025 (Vinod)

Shamsher Thakur v. Kunal Thakur and Ors.

Case brief

What is this about?

What did the court decide?

Shamsher Thakur v. Kunal Thakur and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

M/S Jatindra Associates Toll Lessees Baddi Vs the State of Hp and Others

Ram Lal Vs State of Hp and Ors.

Neha Vs Ajay

H.P. Power Corporation Ltd. Vs Patel Engineering Ltd.

Kunal Thakur and Another Vs Shamsher Thakur and Others

Umesh Kumar and Anr. Vs Rakesh Kanwar and Ors.