Madhya Pradesh High Court
Jagjeet Wadhwa vs Smt. Sunita on 18 June, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 18TH OF JUNE, 2025
MISC. APPEAL NO. 6825 OF 2023
JAGJEET WADHWA
VS.
SMT. SUNITA AND OTHERS
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Appearance:
Shri Sanjay K. Agrawal - Senior Advocate assisted by Shri Anmol
Dubey - Advocate for the appellant.
Shri Mohd Ali - Advocate with Ms Niyati Tiwari - Advocate for the
respondent Nos. 1 to 5.
Shri R.K. Sanghi - Senior Advocate assisted by Shri Siddharth
Kumar Sharma - Advocate for the respondent Nos. 6 to 10.
Shri Vineet Singh - Government Advocate for the respondent
No.12-State.
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Reserved on: 05.03.2025
Pronounced on: 18.06.2025
ORDER
Appellant has filed this appeal under Order 43 Rule 1(u) of the
Code of Civil Procedure, 1908 assailing the judgment dated 13.09.2023
passed by the III District Judge Damoh, District Damoh in RCA No.
72/2022 whereby the judgment and decree dated 18.10.2022 passed by
2
the III Additional Civil Judge, Damoh in Civil Suit No. 96-A/2019 has
been reversed and the matter has been remitted back to the trial court for
de-novo trial.
2. For the purpose of clarity, hereinafter the respondent Nos. 1 to 4
shall be addressed as plaintiffs and, the appellant, respondent Nos. 6 to
10 and the State shall be addressed as defendants.
3. As per the facts of the case, the plaintiffs had filed a civil suit
bearing RCS-A No. 96/2019 for declaration of the sale deeds executed in
favour of the defendants as null and void and for permanent injunction
restraining the defendants from interfering with their possession.
3.1 The dispute was with regard to Khasra No. 115 (new Khasra Nos.
188 and 189) area 8.09 hectares which was further sub-divided into
Khasra Nos.115/1, 115/2 and 115/3 and during the process of settlement
its area was reduced to 6.93 hectares and as such the reduced area i.e.
1.449 hectares numbered as Kh. No. 83 is the subject matter of dispute
and claimed to be ancestral property of the plaintiffs.
3.2 As per the averments made in the plaint, Roopchand Dhobi, father
of the plaintiff-Paramlal Rajak, died on 22.11.1990. Father of Rupchand
Dhobi was Nannai Dhobi. Plaintiff-Paramlal Rajak died on 17.11.2010.
The suit property was the ancestral property and after settlement, the area
of the said property got reduced, in respect of which, a Revenue Case
No. 57-A-6(Pra)/2017-18 was tried by the then Sub Divisional Officer,
Damoh and as such the reduced area i.e. 1.449 hectare of Kh. No. 83 was
3
also considered to be the ancestral property, which is the disputed land
herein.
3.3 The plaintiffs alleged that the defendant No. 1 (present appellant)
was an ostentatious person and was in the habit of grabbing the property
of others and as such he was facing several cases of similar nature. He
also tried to grab the property of the plaintiffs and this fact came to their
knowledge only when the defendants in association with the revenue
authorities, even without issuing any notice to the plaintiffs, came over
the Kh. No. 83 area measuring 1.449 hectare and tried to get the said
land demarcated. The plaintiffs reached on the spot and objected the
demarcation proceedings and thereafter the defendant No.1/present
appellant avoided the said demarcation proceeding and asked the revenue
officers that the same would be done afterwards. The plaintiffs doubted
the act of the defendants and checked the revenue record and then they
came to know that there were manipulations in the revenue record and
the entries in respect of the suit property were tampered, although it is
claimed that the correction in the revenue record would not create any
title in favour of the defendants and the title of the plaintiffs would not
be disturbed and as such they filed a suit for declaration and permanent
injunction.
3.4 Written statement was filed by the defendants denying the claim of
the plaintiffs.
3.5 During the course of the proceedings, an application under Order 7
Rule 11 read with Section 151 of the Code of Civil Procedure was filed
by the defendant No. 1 claiming dismissal of the suit. In the application,
4
the suit was claimed to be dismissed on the ground that it was barred by
time and no cause of action accrued in favour of the plaintiffs to file a
suit.
3.6 The said application was replied and the contention made therein
by the defendants denied by the plaintiffs. The defendant Nos. 2 to 6 also
supported the application submitted by the defendant No.1 and also
sought dismissal of the plaint.
3.7 The trial court after hearing the arguments put forth by the counsel
for the parties and discussing all the material aspects of the matter,
allowed the application filed under Order 7 Rule 11 of CPC by order
dated 18.10.2022 holding that the suit deserved to be dismissed as no
cause of action accrued in favour of the plaintiffs and also on the ground
that the suit filed by the plaintiffs is barred by time as per Article 58 of
the Limitation Act.
3.8 Thereafter, an appeal was preferred against the order dated
18.10.2022. The Additional District Judge vide order dated 13.09.2023
allowed the appeal and set aside the order dated 18.10.2022 passed by
the trial court and remitted the matter back for fresh adjudication.
3.9 The appellate court while setting aside the order dated 18.10.2022
also dismissed the application filed by the defendant No.1 under Order 7
Rule 11 CPC on the ground that the finding, as has been given by the
trial court, could not have been given without conducting a trial and
appreciating the evidence, if any, adduced during the trial. As per the
appellate court, without recording evidence adduced by the parties, the
5
application under Order 7 Rule 11 read with Section 151 CPC cannot be
considered and the suit cannot be dismissed on the grounds mentioned in
the application.
4. The present appeal, therefore, has been filed assailing the order
dated 13.09.2023 passed by the first appellate court reversing the order
of the trial court and remitting the matter for fresh trial.
5. Shri Agrawal appearing for the appellant has submitted that the
appellate court has committed illegality in holding that the question of
limitation and cause of action, if any, accrued in favour of the plaintiffs,
in the facts and circumstances of the case could be decided only after
recording the evidence. He has submitted that it is not mandatory that on
each and every occasion when suit is said to have been dismissed as per
the provision of Order 7 Rule 11 (a) and (d) of CPC, the same should be
decided only after recording the evidence. He has submitted that if the
court, on the basis of averments made in the plaint and other material
available on record, concludes that the suit is apparently barred by
limitation then no further adjudication is required and the suit can be
dismissed even without recording the evidence. According to him, if the
averments made in the plaint especially in paragraphs 6 and 8 are seen, it
can be easily gathered that in view of the said averments and admission
of the plaintiffs therein, the suit was apparently beyond the limitation.
6. Shri Sanghi appearing for the respondent/defendant Nos. 6 to 10
has submitted that Paramlal after knowing about the fact that the sale
deed of the land was executed fabricating his signature, he made an
application before Tahsildar and consequently a revenue case i.e.
6
Revenue Case No. 8/A/70 of 2009-10 was registered and he also
submitted a complaint that Dr. Anil Tandan could take possession of his
land, but that case was dismissed by Tahsildar vide order dated 26 th
March, 2010 and against the said order, Paramlal filed an appeal before
the Sub Divisional Officer, which was registered as Appeal No. 46A/70
of 2009-10. Vide order dated 21st August, 2010 the said authority
decided the appeal and remanded the matter, but during the proceeding
of remand, Paramlal died, but the Tahsildar without bringing the legal
heirs of Paramlal on record passed the final order on 21 st March, 2011
against the dead person and as such the said order was illegal and void.
He has submitted that it clearly indicates that Paramlal had knowledge
about the alleged illegality, but he did not file the suit and as such the
plaintiffs did not acquire any right to file suit after such a long time and it
deserved to be dismissed in pursuance to the application filed under
Order 7 Rule 11 CPC.
7. In support of their submission, learned counsel for the appellant
and as also the respondent Nos. 6 to 10 have relied upon several
judgments of the Supreme Court and also of the High Court, which are
as under:-
2. (2020) 7 SCC 366 – Dahiben vs. Arvindbhai Kalyanji Bhanusali
(Gajra) Dead through Legal Representatives and others.
3. (2014) 14 SCC 254 – Suresh Kumar Dagla vs. Sarwan and
another.
4. (2020) 16 SCC 601 – Raghwendra Sharan Singh vs. Ram
Prasanna Singh (Dead) by Legal Representatives.
7
5. (2011) 9 SCC 126 – Khatri Hotels Private Limited and another
vs. Union of India and another.
6. 2011 SCC OnLine Guj 27 – State of Gujrat & 2 others vs. Patel
Mahendrakumar Ramdas and five others.
7. (2017) 13 SCC 174 – Madanuri Sri Rama Chandra Murthy vs.
Syed Jalal.
8. (2005) 10 SCC 51 – Swamy Atmananda and others vs.
Ramkrishna Tapovanam and others.
9. AIR 2011 Guj 27 – Chandrakant Kantilal Jhaveri vs.
Madhuriben Gautambhai.
10. Civil Appeal No. 14807 of 2024 arising out of SLP © No. 18977
of 2016 – Shri Mukund Bhavan Trust and ors vs. Shrimant
Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another.
11. Civil Revision No. 732/2022 – Smt. Richa Barsaiya vs. Shivam
Mishra and others decided on 15.03.2024.
8. In rebuttal to the submissions made by the learned counsel for the
appellant and the respondent Nos. 6 to 10, Shri Ali, appearing for the
respondent Nos. 1 to 5/plaintiffs has submitted that the appellate court
has given a well reasoned finding while rejecting the application filed
under Order 7 Rule 11 CPC by the impugned order and has rightly
directed that the said application can be decided only after recording the
evidence adduced by the parties. He has submitted that it is a settled
principle of law that application filed under Order 7 Rule 11 CPC can be
decided only on the basis of averments made in the plaint. As per Shri
Ali, in the present case, from the averments made in the plaint and the
cause of action shown by the plaintiffs, it is evidently clear that the
limitation for filing the suit would start from the date of the knowledge
and as such the suit was well within limitation. He has submitted that
from the cause of action shown in the plaint, it is clear that the plaintiffs
came to know about the fact of manipulation in the revenue record only
8
in the month of June-July, 2019 and as such the suit was well within
limitation. According to Shri Ali, the cause of action shown in paragraph
-9 by the plaintiffs would be treated to be started point of limitation that
too from the date of knowledge and as per Article 110 of the Limitation
Act, the suit is within limitation and that can be decided on the basis of
evidence adduced during the trial and the application under Order 7 Rule
11 of CPC cannot be decided only on the basis of averments made in the
plaint and the issue with regard to limitation requires evidence and as
such the appellate court has rightly set aside the order passed by the trial
court. According to him, no interference in the impugned order is called
for. Shri Ali has placed reliance upon the following cases:-
1. 2025 SAR (Civ) 250 – Daliben Valjibhai & others vs. Prajapati
Kodarbhai Kachrabhai and another.
2. Civil Revision No. 414/2021 – Jagjit Singh Wadhwa and others
vs. Sunil Rajak and others.
3. SA No. 525/2015 – Municipal Council Khajuraho vs. Brajkishor
Agrawal and others decided on 03.10.2024.
9. Taking into consideration the rival contentions of the learned
counsel for the parties and after perusal of record, the following
questions emerge to be adjudicated:-
(i) Whether the application under Order 7 Rule 11 of the
Code of Civil Procedure seeking rejection of plaint under
Order 7 Rule 11(d) and under Order 7 Rule 11 (a) of CPC
can be decided even without framing issues and recording
evidence or not?
(ii) Whether the cause of action for determining the
limitation would be counted from the averments made in the
plaint in the column of cause of action or it starts from the
date when cause of action first accrued?
9
10. Shri Agrawal appearing for the appellant and Shri Sanghi
appearing for the respondent Nos. 6 to 10 have supported the order
passed by the trial court rejecting the plaint by allowing the application
filed by appellant/defendant No.1 under Order 7 Rule 11 CPC and
criticized the order passed by the appellate court setting aside the order
passed by the trial court and remitting the matter to decide the
application under Order 7 Rule 11 CPC after framing the issues and
recording the evidence of the parties. It is submitted by them that from
the averments made in the plaint itself it can be gathered that the cause of
action though shown to have been accrued in favour of the plaintiffs in
the month of June-July, 2019, particularly from 05.08.2019, when
certified copy of the sale deeds was received by them and those sale
deeds were subject matter of the suit seeking decree of declaration for
quashing those sale deeds, but as per Shri Agrawal and Shri Sanghi, the
cause of action stated in the plaint cannot be treated as the actual cause of
action when other facts on record indicate that the said date is not when
the cause of action first accrued, but rather that it arose at a different
point of time. According to them, the cause of action, as has been
mentioned in the plaint itself, arose somewhere in the year 2009 when
Paramlal, father of the plaintiffs, moved an application before the
Tehsildar, Damoh and on his application, a Revenue Case No. 8/A/70
year 2009-10 was registered. In the said application it was alleged that
Dr. Anil Tandon (Defendant No. 6) was illegally trying to encroach his
land, but when defendant Nos. 2 to 6 appeared before the Tehsildar,
considering their objection, the application moved by Parasmal was
rejected by the Tehsildar by order dated 26 th March, 2010. Thereafter, an
10
appeal was preferred by Paramlal before the Sub Divisional Officer,
which was registered as Appeal No. 46A/70 year 2009-10 and vide order
dated 21st August, 2010, the said authority remitted the matter to the
Tehsildar, but, during the said proceedings, Paramlal died, although the
Tehsildar passed the order on 21st March, 2011 and that order has now
been assailed in the present civil suit.
11. According to the counsel for the appellant, the alleged sale deeds
were executed between 1990 to 1997 by Paramlal, who had approached
the revenue authorities against the purchaser of the land. This indicates
that Paramlal was well aware of the said sale deeds and the cause of
action to challenge it first accrued to him at that particular point of time.
However, despite having knowledge of the said fact, no suit was filed.
12. I have perused the plaint. From the plaint, it is evident that there
are five plaintiffs. Plaintiff Nos. 1 and 2 are daughters, 3 and 4 are the
sons of Paramlal and plaintiff No. 5 is the son of plaintiff No. 1. All the
plaintiffs are above the age of 35 years except plaintiff No.5. In the plaint
it is stated that the plaintiff No. 4-Akhilesh was residing with his father
Paramlal, who died in the year 2010. In the year 2007, Akhilesh was sent
to jail in a case of murder and was released from jail in the year 2019. As
far as Kamlesh-Defendant No. 3 is concerned, he was ousted by his
father in the year 1997 and thereafter he started residing in Jabalpur and
for plaintiff Nos. 1 and 2, it is stated that after their marriage, they started
residing in their in-laws house, but nowhere it is disclosed whether they
had any knowledge about the said sale deeds or not, although in
paragraph-8 of the plaint, it is mentioned that Paramlal moved an
11
application before Tehsildar, Damoh in the year 2009 and sought relief
against Dr. Anil Tandon (Defendant No. 6), who is respondent No. 10
herein, and in that revenue proceeding, Dr. Anil Tandon appeared
alongwith other defendants and the application of Paramlal was rejected
and the order passed in that revenue proceeding is also sought to be
quashed in the plaint. Thus, the trial court has found that the cause of
action accrued first in favour of Paramlal when he got knowledge of the
fact that the alleged sale deeds were executed between 1990 to 1997, but,
the appellate court did not consider this aspect and simplicitor set aside
the order of the trial court holding that as stated in the plaint, the cause of
action arose in the year 2019 and as such the application under Order 7
Rule 11 CPC cannot be decided without framing the issue and recording
the evidence and remitted the matter.
13. In Swamy Atmananda & Others (supra), the Supreme Court has
explained as to what is the meaning of ‘Cause of Action’ and observed as
under:
“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.”
In view of the aforesaid observation made by the Supreme Court
defining ‘Cause of Action’, it would be relevant to reproduced
paragraph-8 of the plaint, which reads as under:-
12
”8. यह कि जुलाई 2019 को यह भी पता चला कि चूंकि प्रतिवादी
क्रमांक 2 से 5 के विक्रय पत्र फर्जी थे इस कारण उक्त विक्रय पत्रों
की परमलाल को भी जानकारी नहीं थीं इस कारण उन्होंने एक
आवेदन पत्र न्यायालय तहसीलदार दमोह-1 को दिनांक 16
अक्टू बर 2009 को दिया था जिसका राजस्व प्रकरण क्रमांक
8/अ/70 वर्ष 2009-10 कायम हुआ था और यह शिकायत की थी
कि डॉक्टर अनिल टंडन उसकी जमीन पर कब्जा कर सकते हैं यह
प्रकरण प्रतिवादी क्रमांक 2 से 6 से प्रभावित होकर तहसीलदार
दमोह-1 ने दिनांक 26 मार्च 2010 को निरस्त कर दिया था जिसके
खिलाफ परमलाल ने अनुविभागीय अधिकारी को अपील क्रमांक
46अ/70 वर्ष 2009- 10 की थी जिसमें आदेश दिनांक 21 अगस्त
2010 को आदेश कर प्रकरण रिमांड कर किया गया था रिमांड की
कार्यवाही के दौरान परमलाल की मृत्यु हो गई परंतु तहसीलदार
दमोह-1 ने परमलाल के बारिसों को अभिलेख पर लाए बगैर ही
मृत व्यक्ति के खिलाफ अंतिम आदेश दिनांक 21 मार्च 2011 कर
दिया जो कि अवैध एवं शून्य है। मृत व्यक्ति के खिलाफ हर
कार्यवाही और आदेश अवैध एवं शून्य होती हैं। प्रतिवादी अनुज
और डॉक्टर अनिल के पिता प्रभु नारायण टंडन मध्य प्रदेश शासन
के कै बिनेट मिनिस्टर रहे थे और उनके चाचा चंद्र नारायण टंडन
नगर पालिका दमोह के लंबे वर्षों तक अध्यक्ष रहे हैं इस प्रकार के
सभी लोग राजनीतिक प्रभाव वाले और अत्यंत धनाढृय व्यक्ति हैं
बस स्टैड पर चलने वाला टंडन पेट्रोल पंप इन्हीं लोगों का हैं।”
Paragraph-8 of the plaint otherwise includes the act of the
defendants objecting the application of the father of the plaintiff-
Paramlal, who is said to have executed the sale deeds, which are said to
be quashed in the suit and as such it can be easily seen that the cause of
action first accrued in favour of Paramlal, as has been rightly observed
by the trial court. As far as cause of action and suit for declaration is
concerned, the limitation is provided under Article 56 and 58 of the
Limitation Act and it provides that the limitation will begin to run from
the date when right to sue first accrues.
13
14. The Supreme Court has also considered this aspect in case of
Khatri Hotels Private Limited (supra) and observed as under:-
“30. While enacting Article 58 of the 1963 Act, the
legislature has designedly made a departure from the
language of Article 120 of the 1908 Act. The word “first”
has been used between the words “sue” and “accrued”. This
would mean that if a suit is based on multiple causes of
action, the period of limitation will begin to run from the
date when the right to sue first accrues. To put it differently,
successive violation of the right will not give rise to fresh
cause and the suit will be liable to be dismissed if it is
beyond the period of limitation counted from the day when
the right to sue first accrued.”
Thus, in view of the above enunciation of law, it is clear that the
limitation starts from the date when cause of action first accrues, but,
successive cause of action will not provide a fresh period of limitation.
15. The Supreme Court in case of Dahiben (supra) has considered
elaborately the legal position required to be seen at the time of deciding
the application under Order 7 Rule 11 CPC and observed as under:-
“23. We have heard the learned counsel for the parties,
perused the plaint and documents filed therewith, as also
the written submissions filed on behalf of the parties.
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 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
14the 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.”
(emphasis supplied)
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 [Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed
in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba,
1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] 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
15permitted to waste judicial time of the court, in the
following words : (SCC p. 324, para 12)
“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.”
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,
16without 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
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 [Liverpool & London S.P. & I
Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which
reads as : (SCC p. 562, para 139)
“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.”
17
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [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 [D.
Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267;
See also Vijay Pratap Singh v. Dukh Haran Nath Singh,
AIR 1962 SC 941] .
23.13. If on a meaningful reading of the plaint, it is found
that the suit is manifestly vexatious and without any merit,
and does not disclose a right to sue, the court would be
justified in exercising the power under Order 7 Rule 11
CPC.
23.14. The power under Order 7 Rule 11 CPC may be
exercised by the court at any stage of the suit, either before
registering the plaint, or after issuing summons to the
defendant, or before conclusion of the trial, as held by this
Court in the judgment of Saleem Bhai v. State of
Maharashtra [Saleem Bhai v. State of Maharashtra, (2003)
1 SCC 557] . The plea that once issues are framed, the
matter must necessarily go to trial was repelled by this
Court in Azhar Hussain case [Azhar Hussain v. Rajiv
Gandhi, 1986 Supp SCC 315. Followed
in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba,
1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] .
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.
18
24.1. In Swamy Atmananda v. Sri Ramakrishna
Tapovanam [Swamy Atmananda v. Sri Ramakrishna
Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p.
60, para 24)
“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 [T.
Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] this
Court held 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 : (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….”
(emphasis supplied)
24.3. Subsequently, in ITC Ltd. v. Debts Recovery
Appellate Tribunal [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.
19
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 [Madanuri Sri Rama Chandra Murthy v. Syed Jalal,
(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] 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.”
In the aforesaid case, in regard to deciding application under Order
7 Rule 11 CPC and also the cause of action, the Supreme Court has
observed that if by clever drafting of the plaint, it has created the illusion
of a cause of action, it should be nipped in the bud, so that bogus
litigation ends at the earliest stage. The Court must be vigilant against
any camouflage or suppression, and also determine whether the litigation
is utterly vexatious, and an abuse of the process of the court.
16. Further, in Raghvendra Sharan Singh (supra), the Supreme
Court has observed as to how on the basis of facts mentioned in the
plaint the application under Order 7 Rule 11 CPC can be decided for.
The observation made by the Supreme Court is as under:-
“7. Applying the law laid down by this Court in the
aforesaid decisions on exercise of powers under Order 7
Rule 11 CPC to the facts of the case in hand and the
averments in the plaint, we are of the opinion that both the
courts below have materially erred in not rejecting the
plaint in exercise of powers under Order 7 Rule 11 CPC. It
is required to be noted that it is not in dispute that the gift
deed was executed by the original plaintiff himself along
with his brother. The deed of gift was a registered gift
deed. The execution of the gift deed is not disputed by the
plaintiff. It is the case of the plaintiff that the gift deed was
a showy deed of gift and therefore the same is not binding
on him. However, it is required to be noted that for
20approximately 22 years, neither the plaintiff nor his brother
(who died on 15-12-2002) claimed at any point of time that
the gift deed was showy deed of gift. One of the executants
of the gift deed, brother of the plaintiff during his lifetime
never claimed that the gift deed was a showy deed of gift.
It was the appellant herein-original defendant who filed the
suit in the year 2001 for partition and the said suit was filed
against his brothers to which the plaintiff was joined as
Defendant 10. It appears that the summon of the suit filed
by the defendant being TS (Partition) Suit No. 203 of 2001
was served upon Defendant 10-plaintiff herein in the year
2001 itself. Despite the same, he instituted the present suit
in the year 2003. Even from the averments in the plaint, it
appears that during these 22 years i.e. the period from 1981
till 2001/2003, the suit property was mortgaged by the
appellant herein-original defendant and the mortgage deed
was executed by the defendant. Therefore, considering the
averments in the plaint and the bundle of facts stated in the
plaint, we are of the opinion that by clever drafting the
plaintiff has tried to bring the suit within the period of
limitation which, otherwise, is barred by law of limitation.
Therefore, considering the decisions of this Court in T.
Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977)
4 SCC 467] and others, as stated above, and as the suit is
clearly barred by law of limitation, the plaint is required to
be rejected in exercise of powers under Order 7 Rule 11
CPC.”
Emphasis supplied
17. The Supreme Court recently in Shri Mukund Bhavan Trust &
others (supra) relying upon the observation made in the case of
Dahiben (supra) has observed as to in what manner question of
limitation can be considered, if application under Order 7 Rule 11 CPC is
moved. The observation made by the Supreme Court is as under:-
“26. At this juncture, we wish to observe that we are not
unmindful of the position of law that limitation is a mixed
question of fact and law and the question of rejecting the
plaint on that score has to be decided after weighing the
evidence on record. However, in cases like this, where it is
21glaring from the plaint averments that the suit is hopelessly
barred by limitation, the Courts should not be hesitant in
granting the relief and drive the parties back to the trial
Court. We again place it on record that this is not a case
where any forgery or fabrication is committed which had
recently come to the knowledge of the plaintiff. Rather, the
plaintiff and his predecessors did not take any steps to
assert any title and rights in time. The alleged cause of
action is also found to be creation of fiction. However, the
trial Court erroneously dismissed the application filed by
the appellants under Order VII Rule 11(d) of CPC. The
High Court also erred in affirming the same, keeping the
question of limitation open to be considered by the trial
Court after considering the evidence alongwith other
issues, without deciding the core issue on the basis of the
averments made by the Respondent No.1 in the Plaint as
mandated by Order VII Rule 11 (d) of CPC. The Spirit and
intention of Order VII Rule 11(d) of CPC is only for the
Courts to nip at its bud when any litigation ex facie appears
to be abuse of process. The Courts by being reluctant only
cause more harm to the defendants by forcing them to
undergo the ordeal of leading evidence. Therefore, we hold
that the plaint is liable to be rejected at the threshold.”
18. In view of the law laid down by the Supreme Court in the above
referred cases and the facts and circumstances of the case at hand, I am
of the opinion that the appellate court without considering the existing
legal position that the application under Order 7 Rule 11 can be decided
at any stage and the question of limitation cannot be always considered
to be a mixed question of law and fact and therefore, the appellate court
was not right in remitting the matter and setting aside the order of the
trial court directing that the application be decided after framing issues
and recording evidence of the parties. In Madanuri Sri Rama Chandra
Murthy (supra), the Supreme Court has considered this aspect and
observed as under:-
22
“7. The plaint can be rejected under Order 7 Rule 11 if
conditions enumerated in the said provision are fulfilled.
It is needless to observe that the power under Order 7
Rule 11 CPC can be exercised by the Court at any stage
of the suit. The relevant facts which need to be looked
into for deciding the application are the averments of the
plaint only. If on an entire and meaningful reading of the
plaint, it is found that the suit is manifestly vexatious
and meritless in the sense of not disclosing any right to
sue, the court should exercise power under Order 7 Rule
11 CPC. Since the power conferred on the Court to
terminate civil action at the threshold is drastic, the
conditions enumerated under Order 7 Rule 11 CPC to
the exercise of power of rejection of plaint have to be
strictly adhered to. The averments of the plaint have to
be read as a whole to find out whether the averments
disclose a cause of action or whether the suit is barred
by any law. It is needless to observe that the question as
to whether the suit is barred by any law, would always
depend upon the facts and circumstances of each case.
The averments in the written statement as well as the
contentions of the defendant are wholly immaterial
while considering the prayer of the defendant for
rejection of the plaint. Even when the allegations made
in the plaint are taken to be correct as a whole on their
face value, if they show that the suit is barred by any
law, or do not disclose cause of action, the application
for rejection of plaint can be entertained and the power
under Order 7 Rule 11 CPC can be exercised. If clever
drafting of the plaint has created the illusion of a cause
of action, the court will nip it in the bud at the earliest so
that bogus litigation will end at the earlier stage.”
19. This Court in case of Smt. Richa Barsaiya (supra) has also
considered this aspect and taking note of catena of judgments of the
Supreme Court observed as under:-
“15. Conclusively, considering the arguments advanced
by the learned counsel for the parties, the circumstances of the
case as a whole, especially the averments made in the plaint
and in the application filed by the petitioner/defendant under
Order 7 Rule 11 CPC and taking note of the legal position as
23enunciated by the Courts in the cases referred herein above,
this Court is also of the opinion that the land, which is in
question, purchased by the sale deed in question in the name
of the plaintiff by his father namely, Sitaram Mishra-
defendant No.3 claiming himself to be the natural guardian
because the plaintiff was a minor at the relevant point of time
and immediately thereafter the said purchased part of the land
was sold in favour of Smt. Richa Barsaiyya, present
petitioner. The said sale deed is very specific and the sale was
made jointly by Sitaram and plaintiff in which father of the
plaintiff claimed himself to be the natural guardian of the
plaintiff. The plaint itself makes it clear that the land, which
was purchased by the present petitioner from the father of the
plaintiff in the year 2006, was adjoining to the land of the
plaintiff. Nowhere it is stated that the defendant No. 3 and the
plaintiff had no relation after execution of the sale deed on
28.09.2006 and as such it is something unacceptable that the
plaintiff was not aware of the said sale even after attaining the
age of majority in the year 2013, but in the plaint very
cleverly the cause of action is shown to be accrued in the year
2020 when the plaintiff went to his land adjoining to the land
in question for raising construction. The land got mutated in
the name of defendant No. 1/present petitioner in the year
2006 itself. Thus, it is clear that a fictitious cause of action
has been shown by the plaintiff so as to bring the suit within
limitation and to bring it under Article 59 of the Limitation
Act. It is a settled legal position that if clever drafting of the
plaint creates illusion of a cause of action, 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 would not entertain such type of bogus
litigation. Correspondingly, I find that it is a vexatious
litigation filed by the plaintiff with an intention to get his land
returned only on the ground that his father did not get any
permission and he was never declared to be his guardian to
sale his land. However, from the averments made in the plaint
and the documents available on record it is clear that the land
was purchased in the name of the plaintiff by the father
claiming himself to be the natural guardian of the plaintiff and
sold the said land in favour of defendant No. 1, present
petitioner. As such after lapse of such a long time, the suit for
seeking declaration that the said sale deed be declared void
cannot be entertained because it is admittedly barred by time
24and accordingly the plaint is liable to be rejected. In this view
of the matter, it is held that the suit filed by the plaintiff
governs with Article 60 of the Limitation Act and the court
below committed error in not deciding the application saying
that the same can be decided only after recording the
evidence.”
20. The trial court in its order has observed that the plaintiffs on the
one hand are claiming that their father-Paramlal, who is said to have
executed the alleged sale deeds, had no right to execute the same because
the said property was an ancestral property and he could have executed
the sale deeds confining to his own share only, but, on the other hand,
they are also claiming that Paramlal had never executed the sale deeds
and although the share of minors could have been sold by their father
being a Karta of the family but for the said purpose he did not seek any
permission from the competent court and therefore, the said sale deeds
were not binding upon them.
21. The Division Bench of the Gujrat High Court in case of
Chandrakant Kantilal Jhaveri vs. Madhuriben Gautambhai reported
in 2010 SCC OnLine Guj 12122 has observed as under:-
“17. In view of the above, we find that when the plaint
does not disclose any valid cause of action for the relief
prayed in the suit/plaint, no useful purpose would be
served in entertaining the contention that the Trial Court
did not consider the matter in detail on the aspects which
we have considered hereinabove or that the Trial Court
has not recorded proper valid reason for such purpose.
We find that the present proceedings are by way of
appeal and therefore appeal being continuous
proceedings of the Suit, it would not be outside the
jurisdiction of this Court to consider the case on the
aspects other than those which are considered by the
Trial Court for examining as to whether the order for
25dismissal of the plaint under Order VII Rule 11 can be
maintained or not. We find that such being the position,
as referred to hereinabove, our conclusion would be that
as no averments are made in the plaint which disclose
valid cause of action for the reliefs prayed in the
plaint/suit. Hence, the order for rejection of the plaint
has to follow under Order VII Rule 11 of the Code of
Civil Procedure Code, which ultimately has been passed
by the Trial Court.”
22. In my opinion also, in the present case the suit hopelessly barred
by limitation has been filed by the plaintiffs pleading that the cause of
action arose in the year 2019, but from the bundle of facts available in
the plaint itself, it can be easily seen that the plaint has been drafted very
cleverly so as to hide and suppress the actual cause of action whereas
father of the plaintiffs-Paramlal was fully aware of the sale deeds
executed between 1990 to 1997 and challenge to the same was made by
him before the revenue authority knowing fully well about the sale deeds
executed and therefore, the plaintiffs in the instant suit have also sought
declaration to set aside the order passed by the revenue authority in a
proceeding initiated by their father. Thus, it is a clear-cut case of clever
drafting so as to hide and suppress the actual cause of action and to
promote illusory cause of action so as to create camouflage, but this
practice is highly deprecated by the Supreme Court and also by this court
in the cases considered hereinabove.
23. Although Shri Ali appearing for the respondent Nos. 1 to 5 has
submitted that the appellate court has rightly set aside the order of the
trial court and remitted the matter for recording the evidence because
cause of action as per the plaint arose in 2019 and it is a settled principle
of law that the application under Order 7 Rule 11 CPC is decided
26
considering the averments of the plaint. I fully agree with the submission
made by Shri Ali, but, at the same time, the Court has also to see whether
the cause of action shown in the plaint is the real cause of action or it is
an illusion created before the court and if it is found that the suit is barred
by limitation on the basis of the facts available in the plaint, the
application can be decided at any stage and even without framing the
issues. It is also not in dispute that the averments of the plaint are
required to be seen while deciding the application under Order 7 Rule 11
CPC. This Court has also followed the settled legal position on which
Shri Ali is relying upon but even though it is found that the application
under Order 7 Rule 11 has rightly been decided by the trial court and
even in the opinion of this Court the application had to be allowed. The
plaint filed by the plaintiff was rightly rejected by the court below
allowing the application under Order 7 Rule 11 and therefore, I am of the
opinion that this appeal deserves to be allowed.
24. Shri Ali has also placed reliance upon a decision rendered in the
case of Jagjit Singh Wadhwa (supra), but the facts of the said case are
altogether different from the facts involved in the present case and the
legal issues involved in the present case have not been answered in the
said case and consequently, the said case has no application in the
present case.
25. Ex-consequentia, this appeal is allowed. The order dated
13.09.2023 passed in RCA No. 72/2022 by the appellate court, which is
impugned in this petition, is hereby set aside and consequently the order
27
dated 18.10.2022 passed by the III Additional Civil Judge, Damoh in
Civil Suit No. 96-A/2019 is hereby affirmed.
Appeal allowed.
(SANJAY DWIVEDI)
JUDGE
Reghvendra
RAGHVEN Digitally signed by RAGHVENDRA SHARAN
SHUKLA
DN: c=IN, o=HIGH COURT OF MADHYA
DRA
PRADESH,
2.5.4.20=0b4ca33e82678112c8b8779ae1f77
dd53c66b97e56d85ed6193d6ff614e6a268,
ou=HIGH COURT OF MADHYA PRADESH,CID
SHARAN
– 7004934, postalCode=482001, st=Madhya
Pradesh,
serialNumber=83fe7b9f6d64cc4bb81c8f943
9fc48480b0a775065e61ccf27fd2c89984a1b7
SHUKLA
4, cn=RAGHVENDRA SHARAN SHUKLA
Date: 2025.06.18 16:31:27 +05’30’