Punjab-Haryana High Court
Ravinder And Anr vs Harish Rishi And Others on 7 May, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:064514
CR-464-2019 (O&M) 1
116 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-464-2019 (O&M)
Date of decision: 07.05.2024
Ravinder and another
....Petitioners
Versus
Harish Rishi and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Lokesh Sinhal and
Mr. Sukhandeep Singh Advocate for the petitioners
(through Video Conferencing)
Mr.Ashok Bhardwaj, Advocate for respondent no.1 and 2
ANIL KSHETARPAL, J (Oral)
1. Through this revision petition, the defendant assails the
correctness of the interlocutory order passed by the trial court while
dismissing his application filed under Order VII Rule 11 of the Code of
Civil Procedure, 1908 (hereinafter referred to as 'CPC') with a prayer to
reject the plaint at the threshold on the ground that it has been filed
beyond the period prescribed under the Limitation Act, 1963.
2. In order to comprehend the issues involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. On 06/12/2013 the plaintiff (respondent herein) filed a suit
for specific performance of the contract with a consequential relief of
permanent injunction. In para 18 the plaintiff has asserted as under:-
"18. That the cause of action to file the
present suit each and every day when the plaintiff
requested the defendants Nos.1 & 2 to get executed
the sale deed, and also when the 08.12.203 when the
plaintiff made the payment to the defendants Nos. 1 &
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2 and also when the plaintiffs to avoid the litigations
also send the legal notice through Mr. Pankaj Singh
Advocate, on dated 31.01.2014 but the defendant
failed to execute the sale deed and also failed to given
the proper reply to the legal notice till date. And
finally on 30.11.2016 when they have totally refused
to execute the sale deed on 30.11.2016 and also
threaten to sell the said suit property to other persons
having high approaches and this the final date when
the cause of action has arises."
4. The agreement to sell in this case was entered into on
27.01.2012 and the parties agreed to execute and register the sale deed
on 26.04.2012. Subsequently, there was further payment of
Rs.34,00,000/- and receipt dated 08.12.2013 was executed by the
defendant which is thumb marked and signed by the defendant in the
presence of two marginal witnesses. The trial court refused to reject the
plaint of the suit on the ground that question of limitation, in the facts
and circumstances of the present case, is a mixed question of law and
fact, which should be decided after the parties have been permitted to
lead evidence.
5. Sh.Lokesh Sinhal, learned counsel representing the
petitioners has made the following two submissions:-
i) the receipt dated 08.12.2013 does not refer to agreement
to sell dated 27.01.2012 and it is forged.
ii) in the plaint, the plaintiff has not asserted or averred that
there was any renewal of contract.
6. In support of his submissions, he relies upon the following
four judgments:-
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i) Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra)
Dead through legal representatives and others (2020) 7 SCC 366;
ii)Raghwendra Sharan Singh vs. Ram Prasanna Singh
(Dead) by legal representatives (2020) 16 SCC 601;
iii)C.S.Ramaswamy vs. V.K.Senthil and others 2022
SCC Online SC 1330
iv) Ramisetty Venkatanna and another vs. Nasyam
Jamal Saheb and others 2023 SCC Online SC 521.
7. Per contra, the learned counsel representing the respondents
submits that at the time of deciding an application under Order VII Rule
11 CPC, only the assertions made in the plaint are required to be seen.
He submits that the plaintiff has disclosed the cause of action in para 18
which has already been extracted.
8. This Court has considered the submissions made by the
learned counsel representing the parties.
9. The enabling power to reject the plaint is drastic and is
required to be exercised only if the court is definite that the suit is liable
to be dismissed on the basis of the averments made in the plaint. Out of
the grounds enlisted under Order VII Rule 11, one of the grounds on
which the plaint can be rejected is when the court comes to a conclusion
that the suit, appears from the statement in the plaint, to be barred by any
law. In this case, the receipt dated 08.12.2013 has been allegedly
executed by the defendant in favour of the plaintiffs. The suit land in the
receipt as well as in the agreement to sell is common. In the receipt, it is
stated that the amount of Rs.34,00,000/- has been received as earnest
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money. The receipt is in continuation of the previous writing i.e the
agreement to sell. Hence, there is novation of the contract between the
parties, once a subsequent contract has been allegedly signed by the
defendant.
10. With reference to the second submission, it will be noted
that as per Order VI Rule 2 CPC the pleadings are required to be
confined to the facts and that also in a summary manner. The evidence
is not required to be made part of the pleadings.
11. At this stage, it will not be appropriate for the court to reject
the plaint only because in the Muffasil courts the plaint has been drafted
without adverting to the technicalities of law.
12. As far as the judgment cited by the learned counsel
representing the petitioner, it can be noticed that in Dahiben's case
(supra), the Supreme Court laid down the parameters which are required
to be followed while exercising powers under Order VII Rule 11 CPC.
In para 23.5 it has been held that the power conferred upon the court to
terminate a civil action is drastic one and the conditions enunciated
under Order VII Rule 11 are required to be strictly adhered to.
13. In Raghwendra Sharan Singh's case (supra), the
Supreme Court again interpreted Order VII Rule 11 CPC. In certain
cases, the question with respect to the limitation may be a pure question
of law, however, in majority of civil cases, it is a mixed question of law
and facts, which should be decided only after the parties lead their
evidence.
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14. Similarly, the judgment passed in C.S.Ramaswamy's case
(supra) is again on interpretation of the scope of Order VII Rule 11
CPC. In Ramisetty Venkatanna's case (supra), the Supreme Court
was examining the issue with regard to rejection of plaint in the context
of suit for declaration.
15. With highest respect the judgments relied upon by the
learned counsel representing the petitioners are not supporting his
arguments.
16. Keeping in view the aforesaid facts and discussion, no
ground to interfere is made out.
17. Hence, dismissed.
18. All the pending miscellaneous applications, if any, are also
disposed of.
07.05.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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