Madhya Pradesh High Court
Smt. Kanchan Jain Through Power Of … vs Vikas Joshi on 7 July, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:16979
1 CR-644-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 7 th OF JULY, 2025
CIVIL REVISION No. 644 of 2025
SMT. KANCHAN JAIN THROUGH POWER OF ATTORNEY RAKESH
JAIN AND OTHERS
Versus
VIKAS JOSHI AND OTHERS
Appearance:
Shri Vivek Dalal - Advocate for the petitioners
ORDER
This Civil Revision under section 115 of the Code of Civil Procedure
is filed feeling aggrieved by the order dated 07/05/2025 passed in RCSA no.
980-A of 2024 by learned 13th District Judge, Indore, whereby the
application filed by the defendants under Order VII Rule 11 of the C.P.C
was rejected.
2. Learned counsel for the revision petitioners, in addition to the
facts and grounds stated in the petition, submits that plaintiff Vikas Joshi had
filed a suit for specific performance of contract, recovery of possession and
permanent injunction against defendants / petitioners Kanchan Jain and
others. Learned counsel referring to para no, 23 of the plaint, submits that
the plaintiff has pleaded various cause of actions and ultimately pleaded that
the plaintiff came to know that defendant no. 1 to 4 are attempting to transfer
the property to other persons, therefore, he had issued a notice dated
01/04/2024 to defendant nos. 1 to 4. Thereafter, cause of action had arisen
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NIVRUTTIRAO MAHANAG
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day to day. Learned counsel contends that the agreement to sale was
executed between the parties on 06/06/2020. As per the condition no. 2 of
the agreement, which is pleaded by the plaintiff in para – 6 of the plaint. The
payment of consideration amount was to be made within 36 months. On
payment being made, the seller would execute sale deed in favour of the
purchaser or his nominated person. The plaintiff had not paid the
consideration amount in compliance with aforestated condition and filed the
present suit on 16/07/2024. Thus, the suit for specific performance of
contract was filed beyond prescribed limitation of three years. Learned trial
Court committed an error in ignoring this important aspect of the matter and
proceeded to reject the application filed under Order VII Rule 11 of the CPC
stating that the pleadings in para no. 23 of the plaint would be considered on
merits. Learned counsel relied upon the judgment of the Supreme Court in
the case of Dahiben Vs. Arvindbhai Kalyanji Bhanushali (Gajra) dead
through Legal Representatives and others reported in (2020) 7 SCC 366
to contends that the plaint is apparently barred by limitation, therefore, it
should have been rejected by the trial Court.
3. Heard. Perused the record.
4. The Supreme Court in the case of Dahiben (supra) held as under :
23.1. We will first briefly touch upon the law applicable for deciding an
application under Order 7 Rule 11 CPC, which reads as under:
“11. Rejection of plaint.–The plaint shall 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 timeSignature Not Verified
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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:
Provided that the time fixed by the court for the correction of the
valuation or supplying of the requisite stamp-papers 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 stamp-papers, 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.”
23.2. The remedy under Order 7 Rule 11 is an independent and special remedy,
wherein the court is empowered to summarily dismiss a suit at the threshold,
without proceeding to record evidence, and conducting a trial, on the basis of
the evidence adduced, if it is satisfied that the action should be terminated on
any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause
of action is disclosed, or the suit is barred by limitation under Rule 11(d), the
court would not permit the plaintiff to unnecessarily protract the proceedings
in the suit. In such a case, it would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi 1986 Supp SCC 315, this Court held
that the whole purpose of conferment of powers under this provision is to
ensure that a litigation which is meaningless, and bound to prove abortive,
should not be permitted to waste judicial time of the court, in the following
words :
“12. … The whole purpose of conferment of such powers is to
ensure that a litigation which is meaningless, and bound to prove
abortive should not be permitted to occupy the time of the court,
and exercise the mind of the respondent. The sword of Damocles
need not be kept hanging over his head unnecessarily without
point or purpose. Even in an ordinary civil litigation, the court
readily exercises the power to reject a plaint, if it does not disclose
any cause of action.”
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Signed by: AMOL
NIVRUTTIRAO MAHANAG
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NEUTRAL CITATION NO. 2025:MPHC-IND:16979
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23.5. The power conferred on the court to terminate a civil action is, however,
a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to
be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether
the plaint discloses a cause of action by scrutinising the averments in the plaint
[Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I , (2004) 9 SCC
512] , read in conjunction with the documents relied upon, or whether the suit
is barred by any law.
23.7. Order 7 Rule 14(1) provides for production of documents, on which the
plaintiff places reliance in his suit, which reads as under:
“14. Production of document on which plaintiff sues or relies.–
( 1 ) Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce it in court
when the plaint is presented by him and shall, at the same time
deliver the document and a copy thereof, to be filed with the
plaint.
(2) Where any such document is not in the possession or power of
the plaintiff, he shall, wherever possible, state in whose
possession or power it is.
(3) A document which ought to be produced in court by the
plaintiff when the plaint is presented, or to be entered in the list to
be added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the court, be received
in evidence on his behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to document produced for the
cross-examination of the plaintiff’s witnesses, or, handed over to a
witness merely to refresh his memory.”
(emphasis supplied)
23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with
the plaint, are required to be taken into consideration for deciding the
application under Order 7 Rule 11( a). When a document referred to in the
plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the court would determine if
the assertions made in the plaint are contrary to statutory law, or judicial dicta,
for deciding whether a case for rejecting the plaint at the threshold is made
out.
23.10. At this stage, the pleas taken by the defendant in the written statement
and application for rejection of the plaint on the merits, would be irrelevant,
and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo
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Sable v. Charity Commr., (2004) 3 SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is that if the
averments made in the plaint are taken in entirety, in conjunction with the
documents relied upon, would the same result in a decree being passed. This
test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea
Success I , (2004) 9 SCC 512 which reads as :
“139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not must
be found out from reading the plaint itself. For the said purpose,
the averments made in the plaint in their entirety must be held to
be correct. The test is as to whether if the averments made in the
plaint are taken to be correct in their entirety, a decree would be
passed.”
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614, the Court
further held that it is not permissible to cull out a sentence or a passage, and to
read it in isolation. It is the substance, and not merely the form, which has to
be looked into. The plaint has to be construed as it stands, without addition or
subtraction of words. If the allegations in the plaint prima facie show a cause
of action, the court cannot embark upon an enquiry whether the allegations are
true in fact. [D. Ramachandran v. R.V. Janakiraman , (1999) 3 SCC 267; See
also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941] .
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that
the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e)
are made out. If the court finds that the plaint does not disclose a cause of
action, or that the suit is barred by any law, the court has no option, but to
reject the plaint.
24. “Cause of action” means every fact which would be necessary for the
plaintiff to prove, if traversed, in order to support his right to judgment. It
consists of a bundle of material facts, which are necessary for the plaintiff to
prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam , (2005) 10 SCC
51 this Court held :
“24. A cause of action, thus, means every fact, which, if
traversed, it would be necessary for the plaintiff to prove in order
to support his right to a judgment of the court. In other words, it is
a bundle of facts, which taken with the law applicable to them
gives the plaintiff a right to relief against the defendant. It must
include some act done by the defendant since in the absence of
such an act, no cause of action can possibly accrue. It is not
limited to the actual infringement of the right sued on but includes
all the material facts on which it is founded.” (emphasis supplied)24.2. In T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 this Court held
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that while considering an application under Order 7 Rule 11 CPC what is
required to be decided is whether the plaint discloses a real cause of action, or
something purely illusory, in the following words :
“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….” (emphasis supplied)24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal , (1998)
2 SCC 70, this Court held that law cannot permit clever drafting which creates
illusions of a cause of action. What is required is that a clear right must be
made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of
a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed
Jalal (2017) 13 SCC 174, held that it should be nipped in the bud, so that
bogus litigation will end at the earliest stage. The Court must be vigilant
against any camouflage or suppression and determine whether the litigation is
utterly vexatious, and an abuse of the process of the court.
5. Factual matrix of the case in hand is examined in view of the
abovestated prepositions of law.
6. Vikas Joshi (plaintiff) had filed civil suit for specific performance
of contract against the defendants Kanchan Jain, Piyush Jain, Prachi Jain and
Minakshi Jain inter-alia pleading that defendant nos. 1 to 4 have executed an
agreement to sale of the property in dispute on 06/06/2020. In para no. 66 of
the plaint, the terms of payment of consideration were reproduced. The
consideration amount was required to be paid within the period of 36 months
from the date of execution of the agreement to sale. Further, the period of
agreement might be extended with consent of both the parties. It goes toshow that the time was not essence of the contract.
7. In para no. 23 of the plaint, the plaintiff had pleaded various
cause of actions. He further pleaded that the cause of action had arisen, whenSignature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
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NEUTRAL CITATION NO. 2025:MPHC-IND:169797 CR-644-2025
he came to know that defendant nos. 1 to 4 are attempting to transfer the
property, so he had given a notice dated 01/04/2024 to the defendant nos. 1
to 4 and thereafter, filed the present suit for specific performance of contract
on 16/07/2024.
8. The Limitation Act, 1963 prescribes time limit for institution of
suit. Section 2(j) of the Act defines the expression “period of limitation” to
mean the period of limitation prescribed in the Schedule for a suit. Article 54
of the Schedule provides period of limitation of three years for specific
performance of a contract. It further prescribes that the time from which, the
period of limitation for specific performance of a contract shall begin to run
from the date fixed for the performance or if no such date is fixed, when the
plaintiff has noticed that performance is refused.
9. As per the plaint averments, there was no date fixed for the
performance of contract, therefore, the period of limitation shall begin to
run, when the plaintiff has noticed that performance is refused. The plaintiff
had pleaded that defendant nos. 1 to 4 attempted to transfer the property,
therefore, he had issued a notice dated 01/04/2024. Thus, the plaintiff has
pleaded accrual of cause of action of the present suit on 01/04/2024,
therefore, the present suit for specific performance of contract was filed
within the prescribed period of limitation.
10. Learned trial Court has committed no error in rejecting the
application under Order VII Rule 11 of the C.P.C. No patent impropriety or
manifest illegality is made out requiring interference in exercise of revisional
jurisdiction. However, it is clarified that the above discussion is based on theSignature Not Verified
Signed by: AMOL
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NEUTRAL CITATION NO. 2025:MPHC-IND:169798 CR-644-2025
plaint averments for the purpose of considering the impugned order passed
under Order VII Rule 11 of the C.P.C.
11. Consequently, present revision petition is dismissed.
CC as per rules.
(SANJEEV S KALGAONKAR)
JUDGEamol
Signature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 08-07-2025
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