Dismissed¶105

Ajay Kumar v. Ashok Verma and Othes

Himachal Pradesh HC17 Jul 2026CR/47/2026

Case brief

AI extract

What is this about?

HP High Court, CR No. 47 of 2026 (decided 17.07.2026): S.115 CPC revision against dismissal of Order VII Rule 11 CPC application for rejection of plaint — res judicata (S.11 CPC) plea held beyond scope of Order VII Rule 11(d) per Srihari Hanumandas Totala (2021) 9 SCC 99; limitation a mixed question of fact and law on disputed plaint averments; no illegality or material irregularity in trial court order; petition dismissed.

What did the court decide?

The plea of res judicata cannot be adjudicated under Order 7 Rule 11(d): determining it requires consideration of the pleadings, issues and decision in the previous suit, whereas Order 7 Rule 11(d) confines the court to the statements in the plaint; the trial court therefore rightly declined to reject the plaint on that ground. ¶84

Ajay Kumar Vs Ashok Verma and Othes — Himachal Pradesh HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶105

Issue for consideration

Whether the plaint filed by the plaintiffs-respondents is liable to be rejected under Order 7 Rule 11 CPC on the ground that the suit is barred by Section 11 CPC (res judicata)? +2 more

¶21

Court's answer

¶84

Ratio / Principle

The plaint averments on cause of action raise highly disputed questions of fact; since the limitation plea is a mixed question of fact and law requiring evidence, the suit cannot be held barred by limitation at the stage of an application under Order 7 Rule 11 CPC.

¶89

Key takeaways

The trial court rightly exercised its jurisdiction in dismissing the application; its order is neither illegal nor perverse nor unsustainable, and the revision petition is devoid of merit.ratio¶105
The primary object of the revisional powers conferred on the High Courts is to prevent subordinate courts from acting arbitrarily, capriciously and illegally while exercising their jurisdiction.obiter¶90

Detailed headnote1 paragraphs

Civil Revision (CR No. 47 of 2026, High Court of Himachal Pradesh, Romesh Verma J., decided 17.07.2026) — Ajay Kumar v. Ashok Verma & others. Revision under S.115 CPC by defendant No.1 against the order of the Senior Civil Judge, Sarkaghat (dated 06.08.2024) dismissing his application under Order VII Rule 11 CPC seeking rejection of the plaintiffs' suit (declaration and permanent prohibitory and mandatory injunction regarding a shop over jointly owned Khasra Nos. 1268 and 1269) on two grounds: res judicata under S.11 CPC (by reason of the compromise decree of 26.03.1990 concluding the litigation arising from Civil Suit No. 75 of 1984) and limitation. Following Srihari Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99, the Court held that adjudication of a res judicata plea requires consideration of the pleadings, issues and decision in the previous suit and therefore lies beyond the scope of Order VII Rule 11(d), which permits regard only to the statements in the plaint. On limitation, the plaint averments (cause of action pleaded as arising on 13.12.2023, construction on a war footing from 01.02.2024, and refusal on 23.02.2024) raise highly disputed questions of fact; being a mixed question of fact and law, the suit could not be held barred by limitation at that stage. Relying further on D.L.F. Housing (1969(3) SCC 807), P. Kumarakurubaran (Civil Appeal No.5622 of 2025) and Ajit Singh v. Krishan Kumar (Delhi HC, 18.10.2023) on the narrow scope of S.115 revision, the Court found no illegality, perversity or material irregularity in the trial court's order and dismissed the petition, with pending applications disposed of.

¶1

2026:HHC:29446

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

CR No. 47 of 2026 Date of decision: 17.07.2026.

¶4

Ajay Kumar ...Petitioner. Versus Ashok Verma & others ...Respondents.

¶5

Coram:

¶6

The Hon’ble Mr. Justice Romesh Verma, Judge .

¶7

Whether approved for reporting?¹ Yes. For the petitioner : Mr. Pawan Sharma, Advocate. For the respondents : Mr. Ajay Chandel, Sr. Advocate with Mr. Sidhant Jamwal and Ridhi Verma, Advocates.

¶8

Romesh Verma, Judge (Oral):

¶9

This revision petition arises out of order as passed by the learned Senior Civil Judge, Sarkaghat, District Mandi, dated 06.08.2024, whereby the application filed by defendant No.1-petitioner for rejection of the plaint, was dismissed.

¶10

2. The facts as emerge in the present case are that the plaintiffs-respondents filed a suit for declaration and permanent prohibitory and mandatory injunction against the present defendant-petitioner. As per the averments as made in the plaint, it has been stated that the suit land was jointly owned and possessed by Govind, son of Lala, predecessor-in-

¶11

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

¶12

-2 - 2026:HHC:29446

¶13

interest of the defendant-petitioner, Shiv Saran @ Shiv Ram, predecessor-in-interest of plaintiffs No. 1 to 4 and Sundar, son of Lala, predecessor-in-interest of plaintiff No. 5, in equal shares.

¶14

3. It is the case of the plaintiffs, that there exists a shop in the shape of shed over Khasra Nos. 1268 and 1269, which was being used as a courtyard. In the year 1984, Govind, in the absence and without the consent and permission of Shiv Saran @ Shiv Ram and Sundar, removed the old structure and constructed a shop over the whole of the suit land. Though, Shiv Saran @ Shiv Ram and Sundar made several protests with respect to the construction, but he succeeded to complete the same and it was constructed in their absence.

¶15

4. It was averred in the plaint that when Govind refused to remove the construction, Shiv Saran @ Shiv Ram was compelled to institute Civil Suit No. 75 of 1984, on 09.07.1984 for possession of the suit land after demolition of the construction raised therein. The said suit came to be dismissed by the learned Civil Court on 30.06.1986. Thereafter, Shiv Saran @ Shiv Ram preferred an appeal against the said judgment and decree before the learned First Appellate Court, and the said appeal was also decided by the learned District

¶16

-3 - 2026:HHC:29446

¶17

Judge, Mandi, on 26.03.1990, on the strength of a compromise as entered into between the parties.

¶18

5. The predecessor-in-interest of the plaintiffs, Shiv Saran @ Shiv Ram and Sundar, asked late Govind to comply with the terms and conditions of the compromise decree and to provide them a space for the construction of stairs on the first and the second floors and make payments of the cost, so imposed upon him. However, late Govind delayed the compliance and ultimately he died. Therefore, under such circumstances, the suit was filed by the plaintiffs-respondents for seeking declaration that they are owner in possession of the suit land in equal shares by adjudicating the entries to the contrary showing the defendant-petitioner as a sole owner in possession of the same. Further, decree for permanent prohibitory injunction was sought in favor of the plaintiffs and against the defendants.

¶19

6. The suit came to be resisted by the defendant No.1petitioner by raising various objections such as maintainability, cause of action, non-joinder and jurisdiction, etc. After filing of written statement on 28.02.2024, the present petitioner filed an application under the provisions of Order 7 Rule 11 CPC for rejection of the plaint on two counts. Firstly, that the suit as filed by the plaintiffs-respondents is barred by the provisions of

¶20

-4 - 2026:HHC:29446

¶21

Section 11 of the CPC being hit by res-judicata and secondly, it has been alleged in the application that the suit as filed by the plaintiffs-respondents is barred by limitation.

¶22

7. The said application came to be resisted by the plaintiffs-respondents. All the averments as made in the application were refuted and they prayed for the dismissal of the application.

¶23

8. The learned trial court, vide its impugned order dated 06.08.2024, dismissed the application as filed by the defendant-petitioner.

¶24

9. Feeling dissatisfied, the present petitioner instituted an appeal under Section 96 of the CPC, assailing the order as passed by the learned trial court. The learned First Appellate Court dismissed the appeal being not maintainable and feeling aggrieved by the said judgment and the order as passed by the learned Senior civil Judge dated 06.08.2024, the petitioner has approached this Court by invoking the provisions of Section 115 of the CPC.

¶25

10. It is contended by the learned counsel for the petitioner that the impugned orders as passed by the learned courts below are erroneous and liable to be quashed and set aside. He submits that the suit as instituted by the plaintiffsrespondents is clearly barred by the provisions of Section 11 of

¶26

-5 - 2026:HHC:29446

¶27

the CPC and that the suit is hopelessly time barred, which has been filed beyond the period of limitation. Therefore, the application should have been allowed and the plaint as filed by the respondents ought to have been rejected. 11. On the other hand, learned Senior counsel, has defended the impugned order. He has submitted that the provisions of Section 11 of the CPC cannot be decided in the application filed under Order 7 Rule 11 CPC. He submits that the learned trial court has passed a well reasoned order and while invoking the provisions of Section 115 of the CPC, this Court will not interfere in the well reasoned order as passed by the learned trial court.

¶28

12. I have heard learned counsel for the parties and have also gone through the case file carefully. 13. Admittedly, the plaintiffs-respondents had filed a suit for declaration, permanent prohibitory and mandatory injunction against the present petitioner-defendant. As per the case as set up by the defendant-petitioner, initially, a suit was instituted by the plaintiffs-respondents, which came to be dismissed by the learned trial court and thereafter, an appeal was preferred before the learned First Appellate Court, the same was compromised between the parties. It has been alleged that since the defendant-petitioner failed to comply with the

¶29

-6 - 2026:HHC:29446

¶30

terms and conditions of the compromise decree, therefore, they were constrained to institute the suit.

¶31

14. After filing of the written statement, the defendantpetitioner filed the instant application for the rejection of the plaint by invoking the provisions of Section 11 of the CPC and that the suit is hopelessly time barred.

¶32

15. The learned Senior counsel appearing for the plaintif-respondent has drawn the attention of this Court to the judgment as passed by the Hon’ble Apex Court in Srihari Hanumandas Totala vs. Hemant Vithal Kamat & others, (2021) 9 SCC 99, which answers the submissions of the learned counsel for the petitioner-defendant.

¶33

16. It has been held by the Hon’ble Apex Court that in order to consider the application filed under Order 7 Rule 11, the court has to look into the averments as made in the plaint and the same can be considered by the learned 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 as made in the plaint. The pleas taken by the defendants in the written statement are wholly irrelevant and the matter is to be decided only on the basis of averments as

¶34

-7 - 2026:HHC:29446

¶35

made in the plaint.

¶36

17. The Hon’ble Apex Court while relying upon various judgments as passed by the said Court, held as follows:-

¶37

“17. Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence, in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such an application must 12 have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case. Before proceeding to refer to precedents on the interpretation of Order 7 Rule 11(d) CPC, we find it imperative to refer to Section 11 of CPC which defines res judicata:

¶38

“11. Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

¶39

18. Section 11 of the CPC enunciates the rule of res judicata : a court shall not try any suit or issue in which the matter that is directly in issue has been directly or indirectly heard and decided in a ‘former suit’. Therefore, for the purpose of adjudicating on the issue of res judicata it is necessary that the same issue (that is raised in the suit) has been adjudicated in the former suit. It is necessary that we refer to the exercise taken up by this Court while adjudicating on res judicata, before referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11. Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava5 discussed the plea of res judicata and the particulars that would be required to prove the plea. The court held that it is

¶40

-8 - 2026:HHC:29446

¶41

necessary to refer to the copies of the pleadings, issues and the judgment of the ‘former suit’ while adjudicating on the plea of res judicata:

¶42

“11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

¶43

13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be

¶44

-9 - 2026:HHC:29446

¶45

determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.”

¶46

(emphasis supplied)

¶47

19. At this stage, it would be necessary to refer to the decisions that particularly deal with the question whether res judicata can be the basis or ground for rejection of the plaint. In Kamala & others v. KT Eshwara Sa, the Trial Judge had allowed an application for rejection of the plaint in a suit for partition and this was affirmed by the High Court. Justice S B Sinha speaking for the two judge bench examined the ambit of Order 7 Rule 11(d) of the CPC and observed:

¶48

“21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.

¶49

22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.”

¶50

(emphasis supplied)

¶51

20. The Court further held:

¶52

“23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question

¶53

-10 - 2026:HHC:29446

¶54

involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

¶55

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

¶56

25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.” (emphasis supplied)

¶57

21. The above view has been consistently followed in a line of decisions of this Court. In Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust7 , Justice P Sathasivam (as the learned Chief Justice then was), speaking for a two judge Bench, observed that:-

¶58

“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.

¶59

-11 - 2026:HHC:29446

¶60

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)

¶61

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 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.”

¶62

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 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].”

¶63

22. Similarly, in Soumitra Kumar Sen (supra), an application was moved under Order 7 Rule 11 of the CPC claiming rejection of the

¶64

-12 - 2026:HHC:29446

¶65

plaint on the ground that the suit was barred by res judicata. The Trial Judge dismissed the application and the judgement of the Trial Court was affirmed in revision by the High Court. Justice AK Sikri, while affirming the judgment of the High Court held:

¶66

“9. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that Respondent 1-plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and Respondent 2) who are entitled to manage the affairs of M/s Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defense in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff-Respondent 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defense projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC.”

¶67

23.

¶68

Referring to Kamala (supra), the Court further observed that

¶69

“12. … The appellant has mentioned about the earlier two cases which were filed by Respondent 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the

¶70

-13 - 2026:HHC:29446

¶71

judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgement and decree dated 31-31997 passed by the Civil Judge (Junior Division), copy of the judgment dated 31-3- 1998 passed by the Civil Judge (Senior Division) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated 31-72014 passed by Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, Respondent 1 had accepted a sum of Rs 2,00,000 and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order 7 Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions.” (emphasis supplied)

¶72

While holding that “recourse to Order 7 Rule 11” by the appellant was not appropriate, this Court observed that the Trial Court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decided them in the first instance. The Court held that this course of action would help the appellant avoid lengthy proceedings.

¶73

24. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another8 , a three Judge bench of this Court, speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. State of Maharashtra, Church of Christ Charitable Trust and observed that:

¶74

“11. 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

¶75

-14 - 2026:HHC:29446

¶76

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 decided only on the plaint averment. 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.”

¶77

25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:

¶78

25.1 To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

¶79

25.2 The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

¶80

25.3 To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit;

¶81

25.4) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused”.

¶82

18. In view of the exposition of law as laid down by the Hon’ble Apex Court in the case of Srihari Hanuman Das Tofala (supra), whereby it has been held that the adjudication of the plea of res-judicata requires consideration of the pleadings,

¶83

-15 - 2026:HHC:29446

¶84

issues and the decision in the previous suit and such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be looked into.

¶85

19. The learned trial court has also passed the order on similar lines and in the considered opinion of this Court, there is no infirmity or illegality in the same.

¶86

20. As far as the plea as raised by the learned counsel for the petitioner-defendant that the suit filed by the respondents-plaintiffs is hopelessly time barred or it has been filed beyond the period of limitation is concerned, the plaintiffsrespondents have stated in the plaint that the cause of action arose to them on 13.12.2023, when the defendant-petitioner, without the consent and permission of the plaintiffs, demolished/removed the shop and started raising new construction on a war footing on 01.02.2024, without getting the site plan approved from the Municipal Council, Sarkaghat. Therefore, it has been prayed that the right to sue accrued on 23.02.2024, when the defendant-petitioner flatly refused to admit the claim of the plaintiffs.

¶87

21. It is a case of the plaintiffs-respondents that on the strength of a compromise decree, which took place between the parties on 26.03.1990, the defendant-petitioner has failed to comply with the terms and conditions of the said compromise.

¶88

-16 - 2026:HHC:29446

¶89

The averments as made in the plaint raises highly disputed question of facts, which has to be adjudicated and determined by leading independent evidence by the respective parties and since, being a mixed question of fact and law, the suit cannot be held to be barred by the principle of limitation.

¶90

22. T he 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.

¶91

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

¶92

and Construction Company (P) Ltd., New Delhi vs. Sarup

¶93

Singh and others, 1969(3) SCC 807 , has considered the provisions of Section 115 of CPC as follows:-

¶94

“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

¶95

-17 - 2026:HHC:29446

¶96

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”.

¶97

The Hon’ble Supreme Court in Civil Appeal No.5622 of 2025, titled as P.Kumarakurubaran vs, P. Narayanan & others , held as under:-

¶98

-18 - 2026:HHC:29446

¶99

“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.”

¶100

In Ajit Singh & others vs. Krishan Kumar ,

¶101

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

¶102

“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

¶103

-19 - 2026:HHC:29446

¶104

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 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."

¶105

26. The learned trial Court after appreciating the material placed on record has rightly exercised the jurisdiction, which cannot be said to be illegal, perverse, or unsustainable. 27. Consequently, in view of the observations as made hereinabove, there is no merit in the present petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.

¶106

(Romesh Verma) Judge

¶107

17^th July, 2026. (kck)

Ajay Kumar v. Ashok Verma and Othes

Case brief

What is this about?

What did the court decide?

Ajay Kumar v. Ashok Verma and Othes

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

Om Prakash Vs Vidya Sagar and Another

Ashok Wadhwa Vs Jag Mohan Sood

Raj Kumar and Another Vs Gurbax Singh and Another

Kamal Kishore Vs Rita

Pratap Singh Vs Bhagwan Singh

Yash Pal and Others Vs Rakesh Kanwar