Himachal Pradesh High Court
Date Of Decision: 17Th June vs Raj Kumar & Others on 17 June, 2025
2025:HHC:18535
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.177/2024
Date of Decision: 17th June, 2025.
Shiv Ram .....Petitioner
Versus
Raj Kumar & Others. ....Respondents
Coram
The Hon’ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. R.P. Singh, Advocate.
For the Respondents: Ms. Devyani Sharma, Sr. Advocate with
Mr. Shivam Sharma, Advocate, for
respondents No.1 to 4.
Bipin Chander Negi, Judge (oral).
By way of the present petition, a challenge has
been laid to order dated 09.02.2024, passed by the Civil
Judge, Court No.2, Una, District Una, HP, whereby an
application filed under Order 7 Rule 11 CPC, by the present
petitioner, has been dismissed.
2. Heard counsel for the parties and perused the
pleadings and impugned order.
3. The sole contention raised for rejection of the plaint
is that the plaint filed by the respondents is barred by
limitation. The trial Court on a consideration of the entire
matter has correctly stated in the impugned order that
while considering the application under Order 7 Rule 11
CPC, only the pleadings in the plaint and the documents
appended thereto are to be seen.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes
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4. Other than the aforesaid, it has been correctly
observed that limitation is mixed of law and fact, hence,
cannot be decided at the threshold. Necessarily limitation
is a disputed question of law and fact, which requires
appreciation of evidence. In this regard, it would be
appropriate to refer to the judgment of the Apex Court in
Civil Appeal No.5622 of 2025, titled P.
Kumarakurubaran Vs. P. Narayanan & Ors. The
relevant extract is being reproduced hereinbelow for ready
reference:-
“12.1. However, we are of the considered view that
the issue as to whether the appellant had prior notice
or reason to be aware of the transaction at an earlier
point of time, or whether the plea regarding the date
of knowledge is credible, are matters that necessarily
require appreciation of evidence. At this preliminary
stage, the averments made in the plaint must be taken
at their face value and assumed to be true. Once the
date of knowledge is specifically pleaded and forms the
basis of the cause of action, the issue of limitation
cannot be decided summarily. It becomes a mixed
question of law and fact, which cannot be adjudicated
at the threshold stage under Order VII Rule 11 CPC.
Therefore, rejection of the plaint on the ground of
limitation without permitting the parties to lead
evidence, is legally unsustainable.”
” 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:
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(i) Daliben Valjibhai & Others v. Prajapati Kodarbhai
Kachrabhai & Another 7
“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 the document is
registered, the knowledge must be presumed from the
date of registration.
11.
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
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2025:HHC:18535
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.
…
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 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
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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)
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.”
(ii) Salim D. Agboatwala & Others v. Shamalji Oddhavji
Thakkar & Others8
“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.
12. Again as pointed out by a three-Judge Bench of
this Court in Chhotanben v. Kiritbhai Jalkrushnabhai
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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.
13…
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.”
(iii) Shakti Bhog Food Industries Ltd. v. Central Bank
of India & Another
“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?
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
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Gupta [(2007) 10 SCC 59]. In paras 13 to 20, the
Court observed as follows: (SCC pp. 65-66)
“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;
(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;
(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 [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
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2025:HHC:18535defendant 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).
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.
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.)
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.
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Nachhattar Singh Gill [(1982) 3 SCC 487], only a part
of the plaint cannot be “13. As per Order 7 Rule 11,
the plaint is liable to 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 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.
19. In Sopan Sukhdeo Sable v. Charity Commr.
[(2004) 3 SCC 137] this Court held thus: (SCC pp.
146-47, para 15)
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
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in mind that no pedantic approach should be adopted
to defeat justice on hair-splitting technicalities.’
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.”
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) “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
11
2025:HHC:18535stage 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.
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.’
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
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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].
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
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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.”
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.
…
22. It is well-established position that the cause of
action for filing a suit would consist of bundle of facts.
Further, the factum 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
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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 28-11-2003 and
again on 7-1-2005 and then filed the suit on 23-2-
2005, 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.”
5. The present petition has been preferred under
Article 227 of the Constitution of India. This Court has a
restricted and limited jurisdiction to interfere under the
correctional jurisdiction vested in it in terms of Article 227
of the Constitution of India, except to set right a grave
dereliction of duty or flagrant abuse or violation of
fundamental principle of law or justice, miscarriage of
justice, un-reasonable conclusion and perversity.
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6. Besides the aforesaid, in a supervisory jurisdiction
reviewing or re-weighing evidence, substituting
conclusions, correcting every error of fact or even a legal
flaw when the final finding is justified or can be supported
is not permissible. (See Sadhana Lodh vs. National
Insurance Co. Ltd. & another, (2003)3 SCC 524, and
Garment Craft vs. Prakash Chand Goel, (2022)4 SCC
181).
7. In the case at hand, for the reasons stated here-in-
above, I am of the considered view that no ground is made
out in the present petition for invoking the jurisdiction of
this Court under Article 227 of the Constitution of India.
8. In view of above terms, I find no merit in the
present petition and the same is dismissed accordingly.
Pending miscellaneous application(s), if any, shall also
stand disposed of.
Parties are directed to appear before the Court
below on 30.06.2025.
(Bipin Chander Negi)
Judge
17th June, 2025
(Gaurav Rawat)