[Cites 12, Cited by 0]

Madhya Pradesh High Court

Shivalika Realities Pvt. Ltd. Through ... vs M/S Ruhi Builders And Developers Pvt. ... on 23 March, 2026

NEUTRAL CITATION NO. 2026:MPHC-IND:7752

1 C.R. No. 596/2024

IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI

CIVIL REVISION No. 596 of 2024

SHIVALIKA REALITIES PVT. LTD. THROUGH AUTHORIZED
SIGNATORY AMIT
Versus
M/S RUHI BUILDERS AND DEVELOPERS PVT. THROUGH
DIRECTORS SHRIYANSH JAIN AND OTHERS

Petitioner - defendant No.1 by Ms. Veer Kumar Jain - Learned Senior
Advocate assisted by Ms. Surbhi Bahal - Advocate.

Respondent No.1 - plaintiff No.1 by Mr. Rishiraj Trivedi - Advocate.

Respondent No.9 - defendant No.9 by Mr. Anshul Hardia - Advocate.

Respondent No.12 - State of Madhya Pradesh by Mr. Raghav Raj Singh -
Panel Lawyer appearing on behalf of the Advocate General.

None for the other respondents.

Reserved on : 16/03/2026

Pronounced on : 23/03/2026

ORDER

With the consent of the learned counsel appearing for the parties, the

matter is heard finally.

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This civil revision under Section 115 of the Code of Civil Procedure,

1908 (for short, herein after will be referred to as CPC) has been preferred by

the petitioner - defendant No.1 against impugned order 04.04.2024 (Annexure

P/1) in regular civil suit bearing number RCS-A/287/2024 passed by learned

Third District Judge, Indore, District Indore (MP) on an application dated

23.03.2024 (Annexure P/4) filed by defendant No.1 before the learned Court

below under Order 7 Rule 11 of the CPC, whereby the same has been

dismissed.

2. Brief facts of the case are that plaintiffs (respondents No.1 and 2 herein) -

shown as purchaser in agreement to sale dated 13.01.2014 have filed Regular

Civil Suit No.287-A of 2024 against the defendants (including petitioner /

defendant No.1 - shown as seller in the agreement to sale) for the relief of

specific performance of contract, permanent injunction and injunction in

mandatory form, based agreement to sell dated 13.01.2014 (Annexure P/3)

executed by defendant No.1 (petitioner herein) M/s. Shivalika Realities Private

Limited through its authorized signatory Shri Amit Tongia S/o Shri Motilal Ji

Tongia in favour of plaintiffs (respondents No.1 and 2 herein) M/s. Ruhi

Builders and Developers Private Limited through Vikas Gulathi with regard

to lands bearing Survey No.23/3/1, 23/3/2, 23/3/3, 23/3/4, 23/3/5, 23/3/6,

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23/3/7, 23/3/8, 23/3/9, 23/3/10, 23/3/11/1, 23/3/11/2, 23/3/11/3, 23/3/12,

23/3/14, 23/3/15-A, 23/3/15-B, total area 1.915 hectare situated in Village

Pipaliya Kumar, Tehsil and District Indore (MP).

2.1 Defendant No.1 in the civil suit (petitioner in the present civil revision)

had proposed to develop a colony in the name of "The Address" on the

aforesaid lands by constructing a multi storied building. Total consideration

amount was fixed for Rs.20,58,08,800/- (rupees twenty crore fifty eight lakh

eight thousand eight hundred only). Out of the aforesaid amount of

consideration, cheques of Rs.15,44,00,000/- (rupees fifteen crore forty four

lakh only) were to be given to defendant No.1, but due to some reasons,

cheques were lost in the Office of the plaintiffs (respondents No.1 and 2

herein), though an amount of Rs.6,45,00,000/- (rupees six crore forty five lakh

only) was given to defendant No.1 (petitioner herein) out of the aforesaid

consideration amount.

2.2 Relevant documents such as development permission dated 02.07.2009

on No.18/2019; diversion order dated 13.04.2009 passed in Case No.223/A-

2/2008-09; diversion order dated 23.04.2009 passed in Diversion Case

No.229/A-2/2008-09; order dated 31.03.2010 passed by the Office of Joint

Director, Town & Country Planning, Indore in Case No.2057/SP/22/10;

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amended colony development permission dated 28.05.2010 in Case No.31/2010

were made available to the plaintiff/respondent herein.

2.3 Flats as mentioned in para 10 of the civil suit were also to be constructed

and out of the aforesaid flats, 62 flats area 1,02,944 sq. ft. were to be provided

to the plaintiffs (respondents No.1 and 2 herein). Time for execution of sale-

deed was taken on various grounds by Shri Amit Tongia and the same was

granted, looking to the cordial relations between the plaintiffs Company and

defendant Company. After COVID lock down in the year 2022, when lock

down was completely revoked, in pursuance of the aforesaid agreement,

construction of multi storied building was insisted, but on 08.09.2023 Shri

Amit Tongia refused to comply with the agreement to sell and on this, a

complaint was lodged with Police Station Lasudiya, District Indore (MP).

During inquiry, Shri Amit Tongia filed completely forged cancellation deed

dated 23.11.2023, whereas defendant No.9 Vikas Gulati (respondent No.10

herein), who was not given any authorization to cancel the aforesaid agreement

to sale. The plaintiffs were ready and willing to perform their part of the

contract, but that was not complied with, hence suit for specific performance

was filed.

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2.4 In the suit for specific performance, an application under Order 7 Rule 11

of the CPC was filed on behalf of defendant No.1 (petitioner herein). The same

was contested by the plaintiffs and after hearing both the parties, application

dated 23.03.2024 (Annexure P/4) has been dismissed vide impugned order

dated 04.04.2024 (Annexure P/1), which is under challenge in this petition.

3. Learned Senior Counsel appearing for the petitioner submits that the

impugned order passed by the Court below is bad in law. Relevant parameters

for considering an application under Order 7 Rule 11 of the CPC have not been

considered. Agreement to sell dated 13.01.2014 (Annexure P/3) was for a

period of twenty four months and time was the essence of the contract, as

specifically mentioned in the agreement, but the same was not complied with

by the plaintiffs even no consideration amount was given to the petitioner

(defendant No.1), as mentioned in the plaint (Annexure P/2). The suit is

specifically time barred and illusory cause of action has been shown to bring

the suit under limitation. The plaint should have been rejected, considering the

mere averments made in the plaint itself, but without considering the

contentions in right perspective, the application has been dismissed.

4. Learned Senior Counsel has also invited attention of this Court towards

Section 18 of the Limitation Act, 1963 (herein after referred to as the Act) and

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also Article 54 of the Schedule appended to the Act. To buttress his point that

after execution of the agreement to sell dated 13.01.2014, which was to be

executed within twenty four months, no step was taken by the plaintiffs

(respondents No.1 and 2) and even no acknowledgment has been made in view

of the provisions of Section 18 of the Act to revive the limitation. The suit has

been filed in the year 2024, after cancellation of the aforesaid agreement to sell

in the year 2021 under the signatures of authorized signatory respondent No.10

Vikas Gulati.

5. Per contra, learned counsel appearing for respondent No.1 (plaintiff

No.1) submits that the order passed by the learned Court below is based on

settled legal provisions of law and the point of limitation is mixed question of

fact and law, that cannot be decided without recording evidence and the same

has been mentioned in the impugned order itself. Even though other points have

also not been raised in the application filed under Order 7 Rule 11 of the CPC,

but the same has not been pressed, therefore, learned trial Court has not

committed any error in rejecting the application filed under Order 7 Rule 11 of

the CPC, hence, prays for dismissal of this petition.

6. Heard and considered the rival submissions raised at Bar and perused the

record.

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7. As held by the Apex Court in catena of judgments that for deciding an

application filed under Order 7 Rule 11 of the CPC for rejection of the plaint,

meaningful reading of the plaint is required, and only and only pleadings of the

plaint along with the documents annexed are to be seen. The defense taken by

the defendant (s) is not required and cannot be seen for adjudicating the

aforesaid application for rejection of plaint.

8. In case of Kamala & others v. KT Eshwara SA and Others reported in

(2008)12 SCC 661, the two judge bench of the Supreme Court observed that

the conclusion as to rejection of plaint must be drawn from the averments made

in the plaint. The bench observed that what would be relevant for invoking

clause (d) of Order 7 Rule 11 of the CPC are the averments made in the plaint.

For that purpose, there cannot be any addition or subtraction. Relevant

paragraphs 21, 22, 23 and 25 of the aforesaid judgments are reproduced, as

under: -

"21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there

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cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.

23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law."

9. In Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557, the Supreme

Court also observed that 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

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written statement are immaterial and it is the duty of the Court to scrutinize 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. Relevant para 9 of the

aforesaid judgment is reproduced, as under: -

"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 the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of 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. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects."

10. In the light of the aforesaid judgments, it is to be ascertained whether the

plaint allegations itself reveal that the civil suit filed by the plaintiffs

(respondents No.1 and 2 herein) is barred by limitation and is based on illusory

cause of action, created to bring the suit within the period of limitation.

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11. It is well settled that for deciding the application filed under Order VII

Rule 11 of CPC meaningful reading of plaint allegations is required as has been

held by the Apex Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)

Dead through LRs & Ors. (2020) 7 SCC 366. As held in para 23.6 of the

aforesaid judgment, a duty is cast on the court to determine whether the plaint

discloses a cause of action by scrutinizing the averments in the plaint, read in

conjunction with the documents relied upon, or whether the suit is barred by

any law.

12. It is undisputed that agreement to sale dated 13.01.2014 (Annexure P/3)

was executed by respondent Shivalika Realities Private Limited through

authorized signatory Amit Tongia shown as seller in agreement to sale, in

favour of applicant M/s. Ruhi Builders and Developers Pvt. Ltd. through its

authorized signatory Mr. Vikas Gulati, referred as purchaser in the agreement to

sale of the property as mentioned herein-above.

13. From perusal of para-4 of the aforesaid agreement, it is apparent that sale

deed was to be executed in favor of the purchaser after 24 months of signing of

the agreement. Relevant para-4 is reproduced as under:-

"4. The Seller shall be bound to perform the execution of the registered sale deed and the Seller shall complete the

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construction & handover the possession of the property, of which the sale deed is executed, to the Purchaser after 24 months of signing of this Agreement."

14. From perusal of the aforesaid, it is apparent that there was specific

mention of time period whereafter the sale deed was to be executed. It is

revealed from the pleadings in paragraph 3 of the plaint that cheques which

were to be given by the purchaser for paying consideration amount were not

given to the seller and no specific reason has been assigned for not giving the

cheques detailed in aforementioned para-3 of the plaint to the seller. In para-4

of the plaint itself an amount of Rs.6,45,00,000/- has been declared to have

been given to the seller Shivalika Realities Private Limited at the time of

agreement to sale, but no proof in this regard has been annexed with the plaint

in the form of bank statement wherefrom the aforesaid amount has been debited

and during arguments, the same has been denied by the seller.

15. Plaintiff/respondent herein has further alleged in the plaint that cause of

action arose on 20.01.2024 when they came to know about cancellation deed

dated 23.11.2021. The aforesaid cancellation deed has not been filed with the

plaint, but as per plaint allegations it has been executed under signatures of

Vikas Gulati, authorized signatory of the plaintiffs. Allegations in the plaint are

that Vikas Gulati was not authorized to cancel the agreement to sale, but no

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document has been filed to show that what authorities were given to the

aforesaid person by the plaintiffs. Nothing has been filed on behalf of the

plaintiffs that after execution of aforesaid agreement to sale in the year 2014

and after completion of 24 months as mentioned in para-4 of the aforesaid

agreement, what action was taken by the plaintiffs/ respondents herein to get

executed sale deed in compliance of the aforesaid agreement to sale.

16. In para-14 of the plaint, it has been mentioned that after revocation of

Lockdown of Covid-19 pandemic in the year 2022, when Lockdown was

completely revoked, plaintiff asked the respondent No. 1 to start construction of

multi storeyed building in compliance of agreement to sale (Annexure P/3), but

no satisfactory explanation was given by its authorized signatory Amit Tongia

and on 08.09.2023 he refused to comply with the aforesaid agreement to sale.

17. When para-4 of the plaint is read in juxtaposition of para-14 of the plaint,

it is manifest that cheques dated 03.02.2024, bearing No. 572527 of Rs.1 Crore,

dated 04.02.2024 bearing No. 572528 of Rs.1 Crore 5 Lakhs, dated 20.03.2024

bearing No.572521 of Rs.50 Lakh, dated 17.05.2024 bearing No. 332391 of

Rs.50 Lakh, dated 21.05.2024 bearing No. 332392 of Rs.40 Lakh have been

given to seller after refusal dated 08.09.2023 by the authorized signatory of

defendant i.e. Amit Tongia. This in itself reveals that it is against natural

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conduct of a prudent man. If plaint allegations are taken on its face value, when

on 08.09.2023 Amit Tongia, authorised signatory of defendant refused to

comply with the aforesaid agreement to sale, then there was no reason to pay

consideration amount even after that refusal as shown in the aforesaid plaint. In

between the year 2016 & 2024 no action has been taken by the plaintiff to get

executed the sale deed whereas cause of action arose for the first time after

completion of 24 months from the date 13.01.2014 whereon agreement to sale

was executed. Even though in agreement of sale and purchase of immovable

property, time is not generally essence of the contract, but in the instant case

where time period was fixed and after completion of that time period, inaction

on the part of the plaintiff itself reveals that he was reluctant to get executed the

sale deed and therefore without any hue and cry allowed period of limitation to

elapse. Article 54 of the Limitation Act, 1963 provides that limitation for the

execution of sale deed in pursuance of agreement to sale starts from the date of

agreement or where time has been given from that time and in otherwise cases

from the refusal to comply with the agreement to sale. To resolve the

controversy involved in this case Article 54 of the Limitation Act is relevant

which is reproduced as under :-

"54. Description of suit- For specific performance of a contract

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Period of limitation- Three years.

Time from which period begins to run- The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."

18. Since in the instant case a particular period of 24 months was given,

therefore, limitation started for the first time after completion of 24 months

from the date of execution of agreement to sale i.e. 13/01/2014 as mentioned

herein-above. This clearly indicates that the instant suit filed by the plaintiff is

clearly barred by limitation. As mentioned hereinabove cancellation of

agreement to sale has been executed by the authorized signatory of the plaintiff,

therefore, it can be very well presumed that it was within the knowledge of the

plaintiff when the agreement to sale was cancelled on 23/11/2021. Thus, it is

found that the agreement to sale wherein consideration amount has not been

paid, Civil Suit for getting executed sale deed has not been filed within the

period of limitation and no step near about 8 years has been taken to get

complied with the agreement to sale, it is apparent that not only this suit is by

barred by limitation, but also an illusory cause of action has been created by

giving some dates as mentioned in para-16 of the plaint which is result of clever

drafting of the plaint. In case of Dahiben (supra), Hon'ble Apex Court has

dealt with all the points with vivid details and ultimately rejected the plaint as

the same was barred by limitation. In the instant case also, there is neither real

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cause of action nor the suit is within the limitation. Hon'ble Apex Court in ITC

Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70 has 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.

19. Hon'ble Apex Court in the matter of Azhar Hussain v. Rajiv Gandhi

reported in 1986 AIR 1253 has observed 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 power 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 if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

20. In case of T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 : 1977

SCC OnLine SC 286 at page 470 also the Apex has emphasized that

irresponsible law suits should be nipped in bud. Relevant paragraph 5 runs as

under:-

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"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. 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, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: