Read Order: Rakesh Khanna @ Babbu v. Gulzari Lal and Others
Chandigarh, may 23, 2022: The Punjab and Haryana High Court has recently held that at the time of contesting the application under Order VII Rule 11 of CPC, only the contents of the plaint are to be seen and not those of the application under Order VII Rule 11 CPC or any other pleadings.
The Bench of Justice Alka Sarin was dealing with a civil revision petition under Article 226 of the Constitution of India impugning the order vide which the application filed by the first defendant (petitioner) under Order VII Rule 11 of the CPC was dismissed.
Briefly stated, the facts of the present case are such that the plaintiff (first respondent) filed a suit for a declaration to the effect that the plaintiff is the absolute owner and in possession of the suit property. The plaintiff also claimed the relief of permanent injunction restraining the defendants from alienating the suit property.
The first defendant filed an Order 7 Rule 11 CPC application for rejection of the plaint on the grounds that the suit was barred by limitation and also by the provisions of the Prohibition of Benami Property Transactions Act, 1988. The third ground taken in this application was that the suit was under-valued.
The said application also stated that the sale deed in question executed in 1999 was within the plaintiff’s knowledge and the parties had a family dispute since 2013, owing to which in the year 2016, the defendants were dispossessed by the plaintiff.
The Trial Court dismissed the application. In the impugned order, it was noticed that the question of affixing the court fee was given up and not addressed. On the question of the bar of limitation, the Court held that it was a mixed question of law and facts. Regarding the claim of the suit being barred under the 1988 Act, the Court below concluded that the same can be gone into only after appreciating the evidence.
The Counsel for the petitioner argued that the plaintiff had earlier filed a civil suit for a permanent injunction restraining the defendants from interfering in the peaceful possession of a House, however, the same suit was withdrawn based on a compromise. Further, it was the case of the counsel that the suit was barred by the provisions of Order 2 Rule 2 CPC inasmuch as in the earlier suit no plea qua the present suit property was raised.
The Court observed at the very outset that the second argument (Order 2 Rule 2) was not raised by the petitioner before the Trial Court. Thus, this argument was rejected by the Court on the ground that it was raised before the High Court for the first time. This rejection was also influenced by the fact that the decision governing the question of the suit being barred by Order 2 Rule 2 required appreciation of evidence.
In light of the above, the Court expounded that at the time of contesting the application under Order VII Rule 11 of CPC, only the contents of the plaint are to be seen and not those of the application under Order VII Rule 11 CPC or any other pleadings.
Thus, in view of the law laid down by the Supreme Court in Salim D. Agboatwala And Ors v. Shamalji Oddhavji Thakkar And Ors; Chhotanben and Another v. Kiritbhai Jalkrushnabhai Thakkar and Others [2018 (5) RCR (Civil) 163]; and Urvashiben and Another v. Krishnakant Manuprasad Trivedi, coupled with the reading of the plaint, the Court reached the conclusion that the suit was barred by limitation. Thus, the petition was dismissed.