Gujarat High Court
Heirs And Lrs. Of Deceased Vishvanath ... vs Heirs And Lrs. Of Deceased Barot ... on 6 November, 2025
NEUTRAL CITATION
C/CRA/289/2017 ORDER DATED: 06/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 289 of 2017
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HEIRS AND LRS. OF DECEASED VISHVANATH MORLIDHAR & ORS.
Versus
HEIRS AND LRS. OF DECEASED BAROT KANTIBHAI MORLIDHAR &
ORS.
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Appearance:
MR NV GANDHI(1693) for the Petitioners
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Opponent(s) No. 1.7.6,2,3
MR MJ MEHTA(5797) for the Opponent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7.1,1.7.2,1.7.3,1.7.4,1.7.5,1.7.6.1,1.7.6.2,1.7.6.3,1.7.
7,2.1,2.2,2.3,2.4,3.1,3.2,3.3,3.4,3.5,3.6
RULE SERVED for the Opponent(s) No. 3.1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/11/2025
ORAL ORDER
1. Present CRA filed u/s 115 of the Code of Civil Procedure, 1908 (in short "the CPC"), the petitioners challenge order dated 17.3.2017 passed by the learned Principal Senior Civil Judge, Visnagar below application Exh.14 in Special Civil Suit No.30 of 2016.
2. Assailing the impugned order, learned advocate Mr. Gandhi would submit that the learned trial Court has committed serious, factual as well as legal error in rejecting the application under Order 7 Rule 11 of the Code for rejection of the suit, which is hopelessly time barred. He would further submit that plain reading of the plaint indicates that the respondents - plaintiffs were aware of mutation entry No.5376, which is posted in 1976 to settle the partition Page 1 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined between the parties. The respondents plaintiffs assailed said entry in revenue proceedings unsuccessfully previously and looking to this aspect, the suit filed by the respondents plaintiffs and cause of action stated therein is hopelessly time barred. Yet, the learned trial Court disbelieving such legal issue, has cmmitted serious error. He would further submit that the suit is deserved to be filed within 12 years of 1976 as in that year, the partition amongst the parties took place qua disputed property and settled since then. Thus, the suit filed with the purpose of reopening of the petition beyond 12 years is hopelsessly time barred. In view of above submission, he would submit to allow this petition by quashing and setting aside the impugned order and reject the plaint filed under Order 7 Rule 11 of the Code.
3. On the other hand, learned advocate Mr. Mehta for the respondents would support the impugned order on the ground that the learned trial Court has believed that whether partition took place pursuant to entry No.5376 amongst the parties or not is a disputed question of facts and can be decided after permitting both the parties to lead evidence. Therefore, he submits to dismiss the petition.
4. At the outset, to be noticed that the petitioners, who are defendant in the civil suit, prayed to reject the plant on the ground that the plant is hopelessly time barred. It is to be noticed that plea for a rejection of the suit under Order 7 Rule 11 of the Code is a plea of demurerr, whereby a person seeking rejection of the suit has to accept that the pleading in the plant on its face are correct, and yet the plaint is time Page 2 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined barred. On the touchstone of this principle, if we examine the plea raised by the petitioners vis-a-vis the plaint, according to the original plaintiffs, the disputed property is ancestral property consisting of three brothers i.e. Kantibhai Morlidhar, Vishwanath Morlidhar and Laxmanbhai Morlidhar. Kantibhai has expired in 1967. It is alleged in the plaint that two other brothers were managing the disputed property and they have decided to partition the property in the year 1976, however, no written document was ever executed to partition the property. It is further alleged that in the year 1976, by mutation entry, partition was carried out, but without the consent of deceased plaintiff No.1 and deceased plaintiff No.3. It is also alleged by the original plaintiffs that some fraudulent act took place and ultimately the original plaintiffs pleaded following cause of action to file the suit. Paragraph 16 of the plaint is relevant, which reads as under:-
"In view of the facts of the above claim, the distribution of the properties of the deceased Morlidhar Jibhai Barot based on entry number-5376 is not legal nor is it an illegal distribution as stated in the above claim and accordingly, we file the present claim to declare that distribution as illegal and void and to declare all the properties of Morlidhar Bhai as a joint property between the parties and to divide the claimed property and hand over possession. The cause of action of this claim arose by the order of the Additional Secretary dated 21/5/2015 and the claim is currently pending."
5. Subsequently in para 22, the plaintiffs claimed following relief.
Page 3 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined "1. The agricultural lands in question and the ancestral properties of the parties after the death of the deceased Barot Morlidhar Jibhai, the elder brother of the parties, were distributed as mentioned in para-5 of the above claim, as mentioned in para-5 of the above claim, as mentioned in the entry no. 5376 in the title deed of the Revenue Record in the year 1976. Be pleased to held distribution to be illegal and void and all the properties may declared to be the property of the joint family of the parties, i.e. ancestral properties. And (2) Be pleased to order the lawful partition of the said immovable property among the parties and may also order the division of the said immovable property and hand over the possession thereof to the parties and may also issue a preliminary decree accordingly. And (3) Permanent injunction shall be granted against the defendants to prevent them from selling, mortgaging or otherwise transferring or assigning the property i.e. 7 (seven) farms/fields with Khata No. 1022 with survey numbers 1033, 1034/1, 1034/2, 1034/3, 1034/4, 1034/5, 1038 in the name of the respondents or to any other person, or from transferring the possession or enjoyment thereof to any other person. And (4) Pass an order to distribute the produce obtained from the said fields among the disputants in the interest of justice. And (5) All costs of this suit shall be borne by the defendants."
6. It is noticed that the plaintiffs have filed the suit for partition of suit property disputing entry No.5376 on the ground that such entry has been mutated without having real partition between the parties. Apt to note that revenue entry has no value to settle the title of the party it is only the civil Page 4 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined court which can settle the title of the disputed property. Plaintiffs by way of plaint seek partition of the suit property. Suit for partition is registered from the cause of action, as threat to the share of the plaintiffs claims. Suit for partition has continuous cause of action.
7. In the context of the aforesaid aspects, this court is of the opinion that the learned trial court has not committed any error in rejecting the plaint.
8. At the outset, I may reproduce the reasons ascribed by the learned trial court to reject the application in para 6, which reads as under:-
"Thus, after registration of entry No. 5376, it cannot be said when the parties actually took possession of the place and from when the partition between the parties actually took effect without taking evidence. Therefore, it cannot be said from the plaintiff's claim application alone without taking evidence that the plaintiff's claim is barred by time limit. Therefore, it cannot be said at this stage that the plaintiff's claim is liable to be dismissed due to time limit. Also, the plaintiff's clear allegations are that the defendants, without taking any consent from the heirs of the deceased plaintiff number 1 and the heirs of the deceased plaintiff number 3 or his heirs, have made a fictitious partition in their own way, so they are not satisfied with the said partition, hence they have filed the present claim. Considering all these facts, the plaintiff's claim is not legal and there is no legal bar to the plaintiff's claim from the petition itself and it is not clearly proven. Therefore, the present application of the defendants as per order 7 of the total 11 is not maintainable. Considering all these facts, in the interest of justice, the following order is made. The application Exh.14 filed by the defendants is Page 5 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined rejected."
9. According to this Court, sufficient reason has been granted by the learned trial court to reject the plaint. The contention raised by the petitioner on the principle of plea of demurrer, according to this Court, deserve leading of evidence. Drastic order of rejection of plant under Order 7 Rule 11 of the code does not warrant any presence of disputed facts.
10. Let us have assistance from the recent judgment of the Hon'ble Apex Court on the issue raised in this petition. In P.Kumarakurubaran Versus P.Narayanan, 2025 SCC Online Sc 975, in para 12.2, it has been observed as under:-
"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:
(i) Daliben Valjibhai & Others v. Prajapati Kodarbhai Kachrabhai & Another, 2024 SCC OnLine SC 4105
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 Page 6 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 Page 7 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 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 () 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 Page 8 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the Page 9 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 & Others, (2021) 17 SCC 100
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
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NEUTRAL CITATION
C/CRA/289/2017 ORDER DATED: 06/11/2025
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Jalkrushnabhai 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.
1314. 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, (2020) 17 SCC 260
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 Page 11 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined decision of this Court in Ram Prakash Gupta v. Rajiv Kumar 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 Page 12 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 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. (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 meaningfulnot formalreading 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 Page 13 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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. Nachhattar Singh Gill [(1982) 3 SCC 487 ], only a part of the plaint cannot 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 Page 14 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 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 Page 15 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 stage 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 Page 16 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 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 Page 17 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 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 Page 18 of 19 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Nov 10 2025 Downloaded on : Mon Nov 10 21:16:46 IST 2025 NEUTRAL CITATION C/CRA/289/2017 ORDER DATED: 06/11/2025 undefined 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 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."
11. Applying the above ratio, resultantly, the petition fails and stands dismissed. Notice discharged. Interim relief granted earlier stands vacated.
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