Rajender Sharma and Others Vs Dinesh Sharma and Others

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

CR No. 3 of 2024 Reserved on 03.07.2026 Decided on:

¶3

Rajender Sharma & others ...Petitioners. Versus Dinesh Sharma & others ...Respondents.

¶4

Coram

¶5

Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?¹

¶6

For the petitioners: Mr. Ajay Sharma, Senior Advocate with Mr. Tarun Brakta, Advocate. For the respondents: Respondents No. 1 and 2 ex-parte. Mr. Vipin Pandit, Advocate, for respondents No. 3 and 4.

¶7

Romesh Verma, Judge

¶8

The present petition arises out of the order dated 09.11.2023, passed by learned Civil Judge, Rajgarh, District Sirmaur, H.P., whereby an application under Order 7 Rule 11 of CPC filed by the defendants/petitioners came to be dismissed.

¶9

The brief facts of the case are that the plaintiffs/respondents filed a suit for declaration and permanent prohibitory injunction and mandatory injunction against the defendants/petitioners. It was averred in the plaint

¶10

1 Whether reporters of Local Papers may be allowed to see the judgment?

¶11

2

¶12

that late Sh. Gurudiyal Singh died on 15-03-2009, and left behind plaintiffs No. 1 and 3, defendants No. 1 and 2 and late Sh. Virender Dutt Sharma and proforma defendants No. 11 to 16 as his legal heirs being the sons and daughters. Late Sh. Gurudiyal Singh was co-owner in possession of property over the suit land situated at revenue Village Dimber, Tehsil Rajgarh, District Sirmaur, H.P., revenue Village Neri Nawan, Tehsil Pachhad, District Sirmour, H.P., revenue Village Kassauli, Tehsil Kausali, District Sirmaur, H.P., and revenue Village Rakhog, Tehsil and District Solan, H.P.

¶13

As per the case as set up by the plaintiffs, during his life, Gurudiyal Singh transferred about 36 Bighas of land to the extent of 19.10 Bighas, to the extent of 4.18 Bighas and to the extent of 3.1 Bighas situated at Revenue Village Dimber in the name of Sh. Virender Dutt Sharma. During his life time, late Sh. Gurudiyal Singh executed a valid WILL dated 07-112008, in favour of his five sons including late Sh. Virender Dutt Sharma while he was in a sound disposing state of mind. Late Sh. Gurudiyal Singh was also the Mahant of Guru-Gaddi and remained as such for 58 years and as per the family traditions, custom and usages of this Guru-Gaddi, only the

¶14

3

¶15

eldest Son of the family succeeds to the Guru-Gaddi and after

¶16

that the Mahant is worshiped like a God. After the death of Late Sh. Gurudiyal Singh, late Sh. Virender Dutt Sharma being the eldest son of the family succeeded to the Guru- Gaddi as Mahant. After succeeding to Guru-Gaddi as Mahant, late Sh. Virender Dutt Sharma expressed his intention to manufacture a forged WILL of their father late Sh. Gurudiyal Singh and accordingly taking undue advantage of his position in the family, he succeeded in taking the consent of the family members to manufacture a forged and fictitious WILL of late Sh. Gurudiyal Singh and accordingly forged and fictitious WILL dated 22-06-2008, was manufactured by late Sh. Virender Dutt

¶17

Sharma after the death of late Sh. Gurudiyal Singh. The signature of Late Sh. Gurudiyal Singh was forged over the WILL.

¶18

It is the case of the plaintiffs that late Sh. Virender Dutt Sharma did not allow the valid and legal WILL dated 07-11-2008 of late Sh. Gurudiyal Singh to be presented before revenue officer for the attestation of mutation and accordingly the forged WILL dated 22-06-2008 was presented

¶19

4

¶20

before the Revenue Officer (A.C.2nd Grade) for the attestation of mutation of the estate of late Sh. Gurudiyal Singh.

¶21

It is the case of the plaintiffs that Will dated 07.11.2008 which was executed by late Sh. Gurudiyal Singh is a valid, legal and genuine document, which was executed

¶22

by late Sh. Gurudiyal Singh in favour of the party. As per the suit, the cause of action has accrued to the plaintiffs firstly on 15-03-2009, when Sh. Gurudiyal Singh died and again on 29-11-2010 when Last Mutation of Mauza Taksal attested in favour of Late Sh. Virender Dutt Sharma on the basis of Forged WILL Dated 22-06-2008 and again on 22-09-2012 when Sh. Virender Dutt Sharma died and lastly on 08-10-2012 when the defendant No. 5 started collecting the rent for herself and is still continuing.

¶23

Therefore, a decree of declaration to the effect that the WILL dated 22-06-2008 alleged to have been executed by late Sh. Gurudiyal Singh is a forged and fictitious document and has been manufactured by late Sh. Virender Dutt Sharma after the death of Sh. Gurudiyal Singh by forging the signature of late Sh. Gurudiyal Singh. Declaration was sought that Will dated 07-11-2008, executed by Late Sh.

¶24

5

¶25

Gurudiyal Singh is a genuine, legal document and has been executed by Late Sh. Gurudiyal Singh in favour of party to the suit while he was in sound disposing state of mind.

¶26

Further it was prayed that plaintiffs No. 1 and 3, defendants No. 1 and 2 and late Sh. Virender Dutt Sharma are entitled to rental income of Rs. 5,960/- each from the rental income of built up area at Parwanoo. Money decree was prayed for the recovery of Rs. 8,460/- per month and plaintiff No. 3 prayed for money decree for the recovery of Rs. 9,460/- per month against the defendants No. 5 to 10. The suit was instituted in October, 2018.

¶27

Defendants No. 1 to 5 filed written statement by raising preliminary objections with respect to the maintainability, cause of action, limitation, locus standi, estoppel etc. On merits, all the averments as made in the plaint were refuted. The written statement was filed in the month of January, 2019.

¶28

During the pendency of the matter and at the time of plaintiff’s evidence, an application under order 7 Rule 11(b) and (d) read with Section 151 CPC praying for rejecting

¶29

6

¶30

of the plaint was filed by the defendants. The said application came to be filed on 31.08.2022.

¶31

The said application was duly resisted by the plaintiffs/non-applicants by taking the ground of maintainability and that the application has been filed without any merit. Therefore, the same deserves to be dismissed.

¶32

The defendants/applicants filed the rejoinder to the reply filed by the plaintiffs/non-applicants and vide its impugned order dated 09.11.2023, the learned Civil Judge, Rajgarh, District Sirmaur, H.P. dismissed the application filed by the defendants for rejection of the plaint.

¶33

Feeling dissatisfied the defendants/petitioners have approached this Court by filing the instant petition under Section 115 of CPC.

¶34

It is contended by Mr. Ajay Sharma, Senior Advocate assisted by Mr. Tarun Brakta, Advocate, for the petitioners/defendants that the impugned order as passed by learned trial Court is erroneous and liable to be dismissed. He submits that the suit, as instituted by the plaintiffs, is barred by the period of limitation and suit has been undervalued, therefore, on the said two counts the suit as filed by

¶35

7

¶36

plaintiffs/respondents deserves to be rejected. He further submits that after accepting the present petition the application filed by the defendants for the rejection of the plaint deserves to be allowed.

¶37

On the other hand, Mr. Vipin Pandit, Advocate, for the respondents has defended the impugned order as passed by the learned trial Court. He submits that this Court while exercising the power under Section 115 CPC will not disturb the well-reasoned order as passed by the learned trial Court. He submits that the application which was filed by the defendants/petitioners is without any merit. Therefore, no relief can be granted to the petitioners in the present proceedings.

¶38

I have heard learned counsel for the parties and have perused the case file.

¶39

The plaintiffs/respondents had approached the learned trial Court seeking declaration that Will dated 22.06.2008 alleged to have been executed by late Sh. Gurudiyal Singh, is forged and fictitious document and had been manufactured by late Sh. Virender Dutt Sharma after the death of late Sh. Gurudiyal Singh by forging his signatures. The plaintiffs pleaded that mutation on the basis of the said will

¶40

8

¶41

is null and void and is not binding on the rights of the plaintiffs in any manner. It is a case of the plaintiffs that declaration may be passed in their favour to the effect that Will dated 07.11.2008, executed by late Sh. Gurudiyal Singh, is the genuine and legal document to have been executed by late Sh. Gurudiyal Singh in favour of the party to the suit while he was in sound and disposing state of mind. Declaration has also been sought to the effect that plaintiffs No. 1 and 3, defendants No. 1 and 2 and late Sh. Virender Dutt Sharma, is entitled to rental income of Rs. 5,960/- each from the rental income of built-up area at Parwanoo. That after the death of late Sh. Virender Dut Sharma, the legal heirs, defendants No. 5 to 10, are entitled to rental income of Rs. 5,960/- qua the share of late Sh. Virender Dutt Sharma. Further, money decree for the recovery of Rs. 8,460/- and Rs. 9,460/- per month has also been prayed by the plaintiffs.

¶42

The submission of the learned Senior counsel for the petitioners is that suit as instituted by the plaintiffs is barred by limitation on the face of record. As per learned Senior Counsel, it has been stated in the plaint that cause of action arose to the plaintiffs firstly on 15.03.2009 when Sh. Gurudiyal

¶43

9

¶44

Singh died and again on 29.11.2010 when last mutation of Mohal Taksal was attested in favour of late Sh. Virender Dutt Sharma on the basis of the forged Will dated 22.06.2008 and again on 22.09.2012 when Sh. Virender Dutt Sharma died and lastly on 8.10.2012 when the defendant No. 5 started collecting the rent for herself and it still continues.

¶45

He submits that on the face of the record, the suit is barred by the period of limitation as the suit came to be filed in October 2018 whereas, as per the averments as made in the plaint, the cause of action arose to the plaintiffs lastly on 8.10. 2012.

¶46

To the said submission of the learned counsel for the defendants/petitioners it has been stated by the counsel for the plaintiffs/respondents that Civil Suit titled as Subhash Dutt Sharma versus Indira Sharma , whereby a counter claim for declaration, permanent prohibitory and mandatory injunction was filed by the defendants. The copy of the counter claim has been placed on record as Exhibit PW-1/Y. In the said Civil Suit No. 31/1/14/12, the counter claimant Subhash Dutt Sharma filed the application under Order 23

¶47

10

¶48

Rule 1 of the CPC to withdraw the counter claim subject to filing a separate/fresh Civil Suit on the same cause of action.

¶49

In the said application, it was averred by plaintiff No. 1/ Subhash Dutt Sharma, that he intends to withdraw the counter claim with a prayer to file fresh suit after removing and correcting the formal defects in the counter claim on the same cause of action, and in that event, no prejudice would be caused to the other party.

¶50

The said application was allowed on 20.08.2018 with liberty to the counter-claimant to file the suit afresh subject to the limitation. The application which was filed under the provisions of Order 7 Rule 11 of the CPC for rejection of the counter claim became infructuous as per the said order.

¶51

It is contended by the learned counsel for the plaintiffs/respondents that after the withdrawal of the said counter claim, immediately, the suit came to be instituted by the plaintiffs on 09.10.2018. Therefore, it is contended by the learned counsel for the respondents that after availing the benefit of Section 14 of the Limitation Act, the suit as instituted by the plaintiffs/respondents is very much well within the period of limitation.

¶52

11

¶53

23. Learned counsel for the present petitioners has

¶54

relied upon the provisions of Section 14 of Limitation Act, which read as follows:

¶55

14. Exclusion of time of proceeding bona fide in court without jurisdiction.—

¶56

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

¶57

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

¶58

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

¶59

Explanation.—For the purposes of this section,—

¶60

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

¶61

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

¶62

12

¶63

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”

¶64

He submits that the exclusion of the time as being sought by the plaintiffs/respondents is not applicable to the plaintiffs/respondents. He submits that the exclusion of the time shall be applicable to the party while proceeding bonafidely in Court without jurisdiction. He has relied upon the provision of Section 14 sub Section (1) of the Limitation Act. He submits that the benefit of Section 14 of Limitation Act is not applicable to the plaintiffs.

¶65

On the other hand, learned counsel for the respondents has relied upon the provisions of Section 14 sub Section 3(c) of Limitation Act by drawing the attention of this Court that in para 5 of the application which was filed by the plaintiff/counter claimant, under the provision of Order 23 Rule 1 of CPC, it was stated that the defendants No. 2 to 5 have not brought on record the legal heirs of deceased Virender Dutt Sharma and the Counter claimant cannot array the legal heirs of deceased Sh. Gurudiyal Singh and deceased late Sh. Virender Dutt Sharma as parties in the counter claim. Therefore, there is a formal defect which can be removed by

¶66

13

¶67

filing the separate/ fresh suit by impleading all the legal heirs of late Shri Gurudiyal Singh and late Sh. Virender Dutt Sharma.

¶68

The Court is in agreement with the submission of learned counsel for the respondents that the case of the plaintiffs/respondents falls under the provision of Section 14 sub Section 3 (c) of Limitation Act.

¶69

The learned trial Court, has rightly come to the conclusion that the issue of limitation necessitates adjudication upon evidence, particularly in view of the assertions with respect to seeking relief of declaration. In such circumstances, the determination of the limitation involved disputed question of fact which cannot be summarily decided without the benefit of the trial.

¶70

In the present case, the plea of limitation as raised by the defendants needs to be adjudicated by a fullfledged trial and after adducing evidence by the respective parties.

¶71

The learned trial Court has come to the conclusion that question of limitation being mixed question of fact and law needs to be determined and adjudicated by

¶72

14

¶73

adducing the evidence, by the respective parties. Even otherwise, the learned trial Court has come to the conclusion that the issue with respect to the limitation has already been framed. Therefore, parties shall get an opportunity to put their claim in respect to the said issue.

¶74

The Hon'ble Apex Court in Civil Appeal No. 5622 of 2025, titled as P. Kumarakurubaran versus P. Narayanan and others while dealing with the provision of Order 7 Rule 11 CPC has held that when the question of limitation involves disputed facts or hinges on the date of knowledge, such issues cannot be decided at the stage of Order 7 Rule 11 CPC. The Hon'ble Apex Court in the said judgment has held as under:

¶75

“12.2. In this regard, we may usefully refer to the following decisions of this Court, which have consistently held that when the question of limitation involves disputed facts or hinges on the date of knowledge, such issues cannot be decided at the stage of Order VII Rule 11 CPC:

¶76

(i) Daliben Valjibhai & Others v. Prajapati Kodarbhai Kachrabhai & Another

¶77

“10. The First Appellate Court came to the conclusion that the defendants made an application for correcting the revenue records only in the year 2017 and on the said application the Deputy Collector issued notice to the plaintiffs in March 2017 and that was the time when the plaintiffs came to know about the execution of the sale deed. It is under these circumstances that the suit was instituted in the year 2017. While the High Court came to the correct conclusion that under Article 59 of the Limitation Act, a suit can be instituted within 3 years of the knowledge, it proceeded to return a finding that in cases where

¶78

15

¶79

the document is registered, the knowledge must be presumed from the date of registration. 11.

¶80

12. Further, in Chhotanben v. Kirtibhai Jalkrushnabhai Thakkar where again a suit for cancellation of sale deed was opposed through an application under Order 7 Rule 11, on ground of limitation, this Court specifically held that limitation in all such cases will arise from date of knowledge. The relevant portion is as follows: “15. What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18-10-1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellant-plaintiffs is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to 6. They acquired that knowledge on 26-12-2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendants 1 and 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (½) portion of the land so designated towards their share. However, when they realised that the original Defendants 1 and 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by Respondent 1-Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view commends to us. …

¶81

19. In the present case, we find that the appellant-plaintiffs have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendants 1 and 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendants 1 and 2 to refrain from obstructing the peaceful

¶82

16

¶83

enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the trial court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order 7 Rule 11(d) CPC.” (emphasis supplied)

¶84

13. In view of the above, there was no justification for the High Court in allowing the application under Order 7 Rule 11, on issues that were not evident from the plaint averments itself. The High Court was also not justified in holding that the limitation period commences from the date of registration itself. In this view of the matter the judgment of the High Court is unsustainable.”

¶85

(ii) Salim D. Agboatwala & Others v. Shamalji Oddhavji Thakkar & Others

¶86

“11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy [(2015) 8 SCC 331: (2015) 4 SCC (Civ) 100], the rejection of plaint under Order 7 Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11.

¶87

12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [(2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524], the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.

¶88

13…

¶89

14. But a defendant in a suit cannot pick up a few sentences here and there from the plaint and contend that the plaintiffs had constructive notice of the proceedings and that therefore limitation started running from the date of constructive notice. In fact, the plea of constructive notice is raised by the respondents, after asserting positively that the plaintiffs had real knowledge as well as actual notice of the proceedings. In any case, the plea of constructive notice appears to be a subsequent invention.”

¶90

17

¶91

(iii) Shakti Bhog Food Industries Ltd. v. Central Bank of India & Another9

¶92

“6. The central question is: whether the plaint as filed by the appellant could have been rejected by invoking Order 7 Rule 11(d) CPC?

¶93

7. Indeed, Order 7 Rule 11 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 v. Rajiv Kumar Gupta [(2007) 10 SCC 59]. In paras 13 to 20, the Court observed as follows: (SCC pp. 65-66)

¶94

“13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:

¶95

‘(a) where it does not disclose a cause of action;

¶96

(b) 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;

¶97

(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;

¶98

(d) where the suit appears from the statement in the plaint to be barred by any law;

¶99

(e) where it is not filed in duplicate;

¶100

(f) where the plaintiff fails to comply with the provisions of Rule 9;’

¶101

14. In Saleem Bhai v. State of Maharashtra [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 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).

¶102

18

¶103

15. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC 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 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.

¶104

16. “The trial court must remember that if on a meaningful—not 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.)

¶105

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 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.

¶106

18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 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 Order 7 was applicable.

¶107

19. In Sopan Sukhdeo Sable v. Charity Commr. [(2004) 3 SCC 137] this Court held thus: (SCC pp. 146-47, para 15)

¶108

‘15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs 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 permissible to cull out a sentence or a passage and to read it out of the context 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 apparent 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 hair-splitting technicalities.’

¶109

19

¶110

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 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.”

¶111

8. On the same lines, this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust [(2012) 8 SCC 706: (2012) 4 SCC (Civ) 612], observed as follows: (SCC pp. 713-15, paras 10-12)

¶112

“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, 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 issuance of summons to the defendants or at any time before the conclusion of the trial.

¶113

11. This position was explained by this Court in Saleem Bhai v. 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 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 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.’

¶114

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

¶115

20

¶116

that the averments in the written statement are immaterial and it is the duty of the court to scrutinise 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 decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100].

¶117

12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p. 470, para 5) ‘5. … The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them.’ It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer, J. in the abovereferred decision [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.”

¶118

14. All these events have been reiterated in Para 28 of the plaint, dealing with the cause of action for filing of the suit. Indeed, the said para opens with the expression “the cause of action to file the suit accrued in favour of the plaintiff and against the defendants when the illegal recoveries were noticed and letter dated 21-7-2000 was sent to the defendants to clarify as to how the interest was being calculated”. This averment cannot be read in isolation. ….

¶119

22. It is well-established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum

¶120

21

¶121

of the suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order 7 Rule 11 CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the regional office and the regional office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8-5-2002 followed by another letter dated 19-9-2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent Bank could trigger the right of the appellant to sue the respondent Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 2811-2003 and again on 7-1-2005 and then filed the suit on 23-22005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine and legitimate, would be a mixed question of fact and law, depending on the response of the respondents.”

¶122

Therefore, the finding of the learned trial Court holding

¶123

that the suit is not barred by the period of limitation is legal, valid and sustainable while adjudicating application under order 7 Rule 11 of CPC, and the present suit cannot be dismissed at the threshold.

¶124

The second contention as raised by the learned counsel for the petitioners is that the suit property is worth crores of rupees and the proper Court fees has not been affixed on the plaint as it goes to the root of jurisdiction of the present case.

¶125

This Court is of the considered opinion that the objection regarding the undervaluation of the suit does not

¶126

22

¶127

justify the rejection of the plaint under Order 7 Rule 11 of the

¶128

CPC at the threshold. The determination of the proper valuation of the suit is not purely legal domain, but involves consideration of relevant actual aspects and applicable principles governing valuation of the relief prayed for.

¶129

34 Order 7 Rule 11 of the CPC reads as under:

¶130

“11. Rejection of plaint.— The plaint shall be rejected in the following cases:—

¶131

(a) where it does not disclose a cause of action;

¶132

(b) 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;

¶133

(c) 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;

¶134

(d) where the suit appears from the statement in the plaint to be barred by any law;

¶135

(e) where it is not filed in duplicate;

¶136

(f) where the plaintiff fails to comply with the provisions of rule Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamppaper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

¶137

23

¶138

The perusal of the provision of Order 7 Rule 11 of CPC stipulates that if the plaint is found to be undervalued, the Court is required to afford an opportunity at the first instance to the party to correct the valuation within the time fixed by the Court. In case this direction is not complied with, then the rejection of the plaint is called as contemplated in case of the failure. The statutory provision clearly indicates that the rejection is not an instant consequence of an objection as to the valuation. The provisions stipulate that in absence of any finding that the valuation is arbitrary and contrary to the statutory provisions, or that the party has failed to make good the same despite direction by the Court, the rejection of the plaint cannot be ignored. Therefore, it has been rightly held by the learned trial Court that the issue does not fall within the scope of inquiry in the domain of the provisions under Order 7 Rule 11 of the CPC.

¶139

It is well settled in the scope of law that the rejection of the plaint under Order 7 Rule 11 of the CPC is a drastic power, which has to be exercised sparingly. For the purpose of rejection of plaint, only averments and the body of the plaint have to be considered, and the defence as filed by

¶140

24

¶141

the other side is not to be taken into consideration. Provisions of Order 7 Rule 11 of the CPC are mandatory in nature. It states that the plaint will be rejected if any of the grounds specified in plaint is not made out.

¶142

The learned counsel for the respondents has relied upon the judgment of this Court in Civil Revision Petition No. 388 of 2000 , titled Hushan Kaushal versus Bal Raj , dated 27.03.2001, whereby relying upon the judgment in Mina Ram vs. Amolak Ram, AIR 1966 HP 4, learned trial Court therein came to the conclusion that the plaintiff had not properly valued the suit for purpose of Court fees and had not paid the full Court-fee on the reliefs claimed. The trial Court directed the plaintiff to pay additional court-fee of the value of Rs. 3,200.60/-paise on the plaint. The matter was carried in revision by the plaintiff. The question, which arose was whether the case would be governed by Article 17(vi) of the Second Schedule of Court-fees Act, 1870, Second Schedule of the H. P. Court-fees Act, 1968 or by Section 7(iv)(b) or Section 7(v) of the Court-fees Act, 1870. Following the ratio laid down by the Full Bench of the Lahore High Court in Asa

¶143

Ram v. Jagan Nath, AIR 1934 Lahore 563 , it was held that in

¶144

25

¶145

a suit for partition of joint property, where the plaintiff alleges joint possession, the suit would fall under Art. 17(vi) of Second Schedule of Court-fees Act, 1870 and a fixed court-fee is payable. Section 7(iv)(b) would not apply to such a suit.

¶146

It is vehemently contended by learned counsel

¶147

for the respondents that his case is squarely covered by ratio of judgment as laid down by this Court. He would submit that he has filed the suit for joint possession and he has not prayed, or this is not his case that he is out of possession. Therefore, the submission of the learned counsel for the respondents that fixed Court fees is payable in the present case is justifiable as from the frame of the suit, it can be gathered that the plaintiffs are seeking declaration and joint possession with the defendant.

¶148

Therefore, relying upon the ratio of full Bench judgment of the Lahore High Court in Asa Ram (supra) , this Court is of the considered opinion that fixed Court fees is payable in the present case. Therefore, the objection which has been raised by the defendants is not sustainable in view of the law as laid down.

¶149

26

¶150

That even otherwise, the Hon'ble Apex Court has

¶151

repeatedly held that scope of interference while exercising power under Section 115 of the Code of Civil Procedure is very limited.

¶152

It is apposite to explain the nature and scope conferred upon this Court under Section 115 of the CPC and analyze whether this Court is empowered to deal with the issues raised by the petitioners in the instant case. The said

¶153

provision reads as under:

¶154

“Section 115. Revision-

¶155

[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--

¶156

(a) to have exercised a jurisdiction not vested in it by law, or

¶157

(b) to have failed to exercise a jurisdiction so vested, or

¶158

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

¶159

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]

¶160

[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.]

¶161

27

¶162

[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]

¶163

[Explanation.--In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]”

¶164

On bare perusal of the above provision, it is clear

¶165

that the High Court can only interfere with the orders of the Subordinate Court if the court has committed illegality or material irregularity in exercise of its jurisdiction. It is imperative to note that under the revisional powers, this Court cannot attack the findings on the facts by the Subordinate Court and can only interfere if any infirmities are found with the exercise of jurisdiction of the Court and not when the courts erroneously decide the cases.

¶166

The primary object of the revisional powers conferred on the High Courts is to prevent subordinate courts from acting arbitrarily, capriciously and illegally while they exercise their jurisdiction. The aspect related to the revisional powers given to the High Court has been extensively dealt with by the Hon'ble Supreme Court in a catena of judgments, whereby the Hon'ble Court discussed the meaning and scope of the said provision.

¶167

28

¶168

¶169

The Hon’ble Supreme Court in M/s D.L.F.

¶170

Housing and Construction Company (P) Ltd., New Delhi vs. Sarup Singh and others, 1969(3) SCC 807 , has

¶171

considered the provisions of Section 115 of CPC as follows:

¶172

“5. The position thus seems to be firmly established that while exercising the jurisdiction u/s 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this Clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this Clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power u/s 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision u/s 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.

¶173

29

¶174

45. The Hon’ble Supreme Court in Civil Appeal

¶175

No.5622 of 2025 , titled as P. Kumarakurubaran vs, P.

¶176

Narayanan & others , held as under:-

¶177

“14. It is also to be noted that the appellant has categorically averred in the plaint that he executed the registered power of attorney in favour of his father solely for the limited purpose of constructing a house and carrying out related activities. There is no express clause authorizing his father to sell the suit property to any person without the appellant’s consent and knowledge. Yet, the appellant’s father executed a sale deed in favour of his granddaughter, going beyond the scope of the power of attorney, which raises serious doubt about misuse of authority and potential fraud. Such assertions cannot be rejected in the application under Order VII Rule 11 CPC. Accordingly, we are of the view that the plaint discloses a cause of action which cannot be shut out at the threshold. Thus, the trial Court acted within its jurisdiction in refusing to reject the plaint and in holding that the matter ought to proceed to trial. The High Court, while exercising its revisional jurisdiction under Section 115 CPC, ought not to have interfered in the absence of any jurisdictional error or perversity in the trial court’s order. Rejecting the plaint where substantial factual disputes exist concerning limitation and the scope of authority under the Power of Attorney, is legally unsustainable.”

¶178

46. In Ajit Singh & others vs. Krishan Kumar,

¶179

decided on 18^th October, 2023 , the Hon’ble Delhi High Court, held as under:

¶180

“11. The same view is reiterated in a later decision of this Court in the case of Managing Director (Mig) Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway [(1972) 3 SCC 195] wherein a three-Judge Bench of this Court speaking through Hegde, J. clearly stated that the High Court under Section 115 CPC had no jurisdiction to interfere with the order of the first appellate court based on facts or even involving any error of law. It was next observed that it was not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that

¶181

30

¶182

it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear, that it had jurisdiction to make that order. It was not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code."

¶183

No other point raised by the learned counsel for the parties. Therefore, in the considered opinion of this court, while exercising the power under Section 115 of the CPC, this Court will not disturb the well-reasoned order as passed by the learned trial Court.

¶184

Consequently, in view of the observation as made above, the present petition being devoid of any merit deserves to be rejected. Order accordingly.

¶185

However, it is made clear that observations as

¶186

made in the present case will not have any bearing on the merits of the main case as these observations are strictly for the disposal of the instant petition.

¶187

(Romesh Verma) Judge

¶188

July ______, 2026 (Nisha)

Rajender Sharma and Others v. Dinesh Sharma and Others

Case brief

What is this about?

What did the court decide?

Rajender Sharma and Others v. Dinesh Sharma and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Babu Ram Vs Puni Chand

Rajan Chopra Vs Kishori Lal

Kamal Kumar Vs State of Hp

Tulsi Ram Vs Dharam Prakash

Koullan Devi Deceased through Lrs Pushpa Devi and Ors. Vs Gurdittu Deceased through Lrs Jamna Dass and Ors.

Swarn Singh Vs Harmeet Singh and Another