Punjab-Haryana High Court
Prem Kumar vs Charanjit Singh And Ors on 29 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:057526
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-6710-2018 (O&M)
Reserved on : 02.04.2024
Pronounced on : 29.04.2024
PREM KUMAR ....Petitioner
VERSUS
CHARANJIT SINGH AND OTHERS ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Prashant Bansal, Advocate for the petitioner.
Mr. Chetan Kapoor, Advocate for the respondent No.1.
ALKA SARIN, J.
1. The present revision petition has been filed by the defendant
challenging the impugned order dated 30.07.2018 whereby the application
filed by him under Order 7 Rule 11 CPC for rejection of the plaint has been
dismissed.
2. Learned counsel for the defendant-petitioner would contend
that the suit filed by the plaintiff-respondent No.1 is for recovery on account
of malicious prosecution. The defendant-petitioner herein moved an
application under Order 7 Rule 11 CPC for rejection of the plaint on the
ground that the limitation for filing a suit for compensation for malicious
prosecution is within one year of the date of acquittal or the prosecution is
otherwise terminated. It was averred that the order of acquittal was passed
on 07.08.2015 while the suit was filed on 30.11.2016 and was therefore time
barred. Learned counsel would further contend that the Bombay High Court
has held in the case of Bhaskar Narhar Deshmukh vs. Kisanlal
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Sadasukhdas & Anr. [AIR 1968 Bombay 21] that the limitation would
start from the date of acquittal by the trial court itself.
3. Per contra, learned counsel for the plaintiff-respondent No.1
has relied upon the judgement of the Division Bench of the Jammu and
Kashmir High Court in Krishan Gupta & Ors. vs. D.D. Sadhotra & Ors.
[AIR 2014 J&K 81] and a Bench of the Madhya Pradesh High Court in S.
D. Tiwari vs. Gurmeet Singh alias Billo & Anr. [2009 (2) RCR Criminal
621] to contend that the period of one year would commence from the
dismissal of the appeal against acquittal.
4. I have heard the learned counsel for the parties.
5. The only ground on which the application under Order 7 rule 11
CPC was pressed was that the suit itself was barred by limitation. It is trite
that while deciding an application under Order 7 Rule 11 CPC only the
contents of the plaint along with any document filed with the plaint are to be
seen. Neither the written statement nor the averments made in the
application can be considered for rejection of the plaint under Order 7 Rule
11 CPC. While exercising the powers under Order 7 Rule 11 CPC, the Court
has to determine as to whether a case for rejecting the plaint at the very
threshold is made out. On a meaningful reading of the plaint if it is found
that the same is vexatious or is clearly barred by limitation, the Court would
exercise its powers under Order 7 Rule 11 CPC. The Hon'ble Supreme
Court in the case of Salim D. Agboatwala vs. Shamalji Oddhavji
Thakkar [(2021) 17 SCC 100] has held as under :
"8. Insofar as the rejection of the plaint on the ground
of limitation is concerned, it is needless to emphasise
that limitation is a mixed question of fact and law. It is
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the case of the appellant-plaintiffs that only after
making inspection of the records in connection with the
suit land available in the office of Defendant 3 (Court
Receiver) that they came across the correspondence and
documents relating to the transactions and that the
proceedings before ALT were collusive, fraudulent and
null and void. The appellant-plaintiffs have even
questioned the authority of the Court Receiver to
represent them in the tenancy proceedings."
6. In the case of Chotanben and another vs Kiritbhai
Jalkrushnabhai Thakkar [2018 (5) RCR (Civil) 163] the Hon'ble
Supreme Court held as under :
"12. What is relevant for answering the matter in issue
in the context of the application under Order VII Rule
11(d), 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 VII Rule 11(d). Only the averments in the plaint
are germane. It is common ground that the registered
sale deed is dated 18th October, 1996. The limitation to
challenge the registered sale deed ordinarily would
start running from the date on which the sale deed was
registered. However, the specific case of the appellants
(plaintiffs) is that until 2013 they had no knowledge
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whatsoever regarding execution of such sale deed by
their brothers - original defendant Nos.1 & 2, in favour
of Jaikrishnabhai Prabhudas Thakkar or defendant
Nos.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 defendant Nos.1 & 2) calling upon
them to stop interfering with their possession and to
partition the property and provide exclusive possession
of half (1/2) portion of the land so designated towards
their share. However, when they realized that the
original defendant Nos.1 & 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 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 No.1 (defendant No.5) for rejection of the
plaint under Order VII Rule 11(d). That view commends
to us."
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7. Further, in the case of Urvashiben & anr. vs Krishnakant
Manuprasad Trivedi [2019 (1) RCR (Civil) 366] it has been held as under:
"15. By applying the aforesaid principles in the
judgments relied on by Sri Dushyant Dave, learned
senior counsel appearing for the respondent, we are of
the considered view that merits and demerits of the
matter cannot be gone into at this stage, while deciding
an application filed under O.VII R.11 of the CPC. It is
fairly well settled that at this stage only averments in
the plaint are to be looked into and from a reading of
the averments in the plaint in the case on hand, it
cannot be said that suit is barred by limitation. The
issue as to when the plaintiff had noticed refusal, is an
issue which can be adjudicated after trial. 14 (2009) 5
SCC 462 15 (2006) 5 SCC 658 C.A.@
SLP(C)Nos.23062-63/18 Even assuming that there is
inordinate delay and laches on the part of the plaintiff,
same cannot be a ground for rejection of plaint under
O.VII R.11(d) of CPC."
8. In the present case the question to be determined is whether the
limitation began from the date of acquittal by the Trial Court or from the
date of decision by the Appellate Court. The learned counsel for the
defendant-petitioner has contended that the plaint itself only states that the
cause of action arose only when the defendant-petitioner refused to accept
the genuine request of the plaintiff-respondent No.1. It would be a matter of
evidence as to whether the suit is within limitation or not. On a plain reading
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of the plaint it cannot be inferred or adduced that the suit is barred by
limitation. The plaintiff-respondent No.1 has mentioned in para 4 of the
plaint that the appeal against his acquittal was dismissed on 02.12.2015. On
the face of it, the averments made in the plaint make out a case within
limitation against the defendant-petitioner. However, exercise of powers
under Order 7 Rule 11 CPC are drastic ones and a duty is caste on the Court
to determine as to whether the plaint, on a plain reading along with
document annexed thereto, discloses a cause of action. No other document is
to be seen at this stage. Keeping in view the law laid down that the question
of limitation would be a mix question of law and fact, the same cannot be
decided in an application under Order 7 Rule 11 CPC. Since the question of
limitation has not been kept open by the Trial Court while deciding the
application under Order 7 Rule 11 CPC, the order of the Trial Court is set
aside to the limited extent that the question of limitation would be kept open
to be decided on an issue to be framed qua the same. The question of
limitation would then be decided on the basis of the pleadings and the
evidence led by the parties.
9. The present petition is disposed off accordingly. Pending
miscellaneous applications, if any, also stand disposed off.
( ALKA SARIN )
29.04.2024 JUDGE
Ankur
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
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