In CR-4377-2019 (O&M)-PUNJ HC- It has been repeatedly held by Supreme Court that clever drafting creating illusion of cause of action needs to be ‘nipped in the bud’, says P&H HC Justice Alka Sarin [20-05-2022]

Read Order: Om Parkash and Another v. Municipal Corporation, Faridabad and Others 

Monika Rahar

Chandigarh, May 21,2022: The Punjab and Haryana High Court has held that on a meaningful reading of the plaint, if it is manifestly vexatious and meritless and does not disclose any cause of action, the Court would not hesitate to exercise the powers under Order 7 Rule 11 CPC. 

Adding to this observation, the Single Judge Bench of Justice Alka Sarin observed that it has repeatedly been held by the Supreme Court that clever drafting creating the illusion of a cause of action needs to be nipped in the bud. 

The present revision petition under Article 227 of the Constitution of India was preferred by the defendant-petitioners challenging the impugned order passed by the Civil Judge (Junior Division), Faridabad dismissing the application filed by them under Order 7 Rule 11 of the CPC seeking rejection of the plaint filed by the plaintiff-respondent herein.

Briefly stated, the defendant-petitioners filed a civil suit against the plaintiff-respondent herein claiming that they were owners in possession of the property in dispute on the basis of the sale deed and that the plaintiff-respondent tried to encroach upon the land in question. The suit filed by the defendant-petitioners was dismissed by the Trial Court, however, the appeal preferred by them was allowed .

The plaintiff-respondent herein (being defendant in that suit) preferred a second appeal which was dismissed by the High Court. Against this judgment, the plaintiff-respondent preferred a Special Leave Petition which was also dismissed. Along with the litigation in the civil court, proceedings regarding sanction of the mutation were also going on between the parties. 

The mutation in favour of the defendant-petitioners was not sanctioned in favour of the defendant-petitioners. However, their appeal was allowed by the Collector, Faridabad and against this allowing of the appeal, the plaintiff-respondent filed an appeal which was dismissed by the Commissioner, Gurgaon Division. The plaintiff-respondent thus preferred a revision before the Financial Commissioner, as a result of which, the orders passed of the Collector and the Commissioner were set aside and the order passed by the Assistant Collector was upheld. 

Aggrieved by the order passed by the Financial Commissioner, the defendant-petitioners herein preferred a writ petition which was allowed holding the order passed by the Financial Commissioner to be not sustainable in the eyes of law and was hence set aside. Aggrieved, the plaintiff-respondent herein preferred an LPA which too was dismissed. 

The plaintiff-respondent herein thereafter filed the present civil suit for declaration with consequential relief of permanent injunction stating therein that the defendant-petitioners herein were illegally and unlawfully trying to encroach and construct over the land in dispute. The defendant-petitioners filed an application under Order 7 Rule 11 of CPC for rejection of the plaint to which a reply was filed by the plaintiff-respondent. The said application was dismissed by the Trial Court vide the impugned order, hence the present revision petition was filed. 

The counsel for the defendant-petitioners vehemently contended that the present civil suit was clearly barred by limitation inasmuch as the plaintiff-respondent was aware of the sale deed in favour of the defendant-petitioners since the year 1997 when the suit was filed by the defendant-petitioners herein. Further, the Counsel argued that undoubtedly limitation is a mixed question of law and fact, however, in a given case where from a meaningful reading of the plaint, if it is discernible that the suit was clearly barred by limitation, the Court would not hesitate in rejecting the plaint under Order 7 Rule 11 of CPC. 

The Court observed at the very outset that in this case, the litigation between the parties commenced in the year 1997 and the execution of the sale deed (of February 1983) was well within the knowledge of the plaintiff-respondent since August 1997 and that at no point of time, despite the litigation having reached the High Court twice and the Supreme Court once, was the said sale deed ever challenged by the plaintiff-respondent.  

Further, Justice Sarin observed that if on a meaningful reading of the plaint it is manifestly vexatious and meritless and that it does not disclose any cause of action, the Court would not hesitate to exercise the powers under Order 7 Rule 11 CPC. Adding to this observation, it was observed that it has repeatedly been held by the Supreme Court that clever drafting creating the illusion of a cause of action needs to be nipped in the bud. 

In light of the above, the Court reiterated that in the present case, the plaintiff-respondent was well aware of the execution of the sale deed in favour of the defendant-petitioners yet at no point of time was the sale deed challenged. 

Further,  on the issue of period of limitation, the Court added that the period of limitation prescribed under Articles 58 and 59 of the Limitation Act, 1963 is three years which commences from the date when the right to sue first accrues, and in the present case, being a party to the earlier litigation, the right to sue first accrued would mean when the said fact first came to the knowledge of the plaintiff-respondent.

“Litigation commenced between the parties in the year 1997 and the present suit has been filed in the year 2018. Hence, by no stretch of imagination can the present suit be held to be within limitation merely on the saying that Letters Patent Appeal preferred by the plaintiff-respondent came to be dismissed on 09.11.2017”, the Bench opined. 

In view of the above, the present revision petition was allowed and the impugned order dated was set aside. The application for rejection of the plaint under Order 7 Rule 11 was accepted and the plaint accordingly was rejected.