Uttarakhand High Court
Ram Kumar & Another --Petitioners vs Alok Nanda on 17 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
Reserved on :13.06.2025
Delivered on: 17.06.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition Misc. Single No. 1636 of 2025
Ram Kumar & another --Petitioners
Versus
Alok Nanda --Respondent
With
Writ Petition Misc. Single No. 1637 of 2025
Ram Kumar & another --Petitioners
Versus
Narendra Singh Negi --Respondent
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Presence:-
Mr. M.S. Tyagi, Senior Advocate, assisted by Mr. Pulak Agarwal,
Advocate for the petitioners.
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JUDGMENT
Respondents filed two suits for permanent
injunction against petitioners before learned Civil Judge
(Junior Division), Nainital, which are numbered as Civil
Suit No. 8 of 2025 and Civil Suit No. 9 of 2025. In
those suits, petitioners moved application under Order
7 Rule 11 CPC, which were rejected. Petitioners filed
Revision Petitions challenging Trial Court's order, which
were dismissed by learned District Judge, Nainital.
Thus, feeling aggrieved, petitioners have approached
this Court under Article 227 of the Constitution.
2. Since common questions of law and fact are
involved in these writ petitions, therefore they are
heard together and are being decided by a common
judgment. However, for the sake of brevity, facts of
Writ Petition (M/S) No. 1636 of 2025 alone are being
considered and discussed.
3. Petitioners are defendants in Civil Suit No. 08
of 2025 filed by Mr. Alok Nanda, seeking permanent
injunction. In the said suit, petitioners filed application
for rejection of plaint under Order 7 Rule 11 CPC
stating that plaintiff has suppressed the material fact
that the defendants (petitioners herein) are in actual
physical possession of property, in terms of a registered
agreement dated 27.10.2023, therefore, the suit is
frivolous and amounts to abuse of process of law.
4. Learned Trial Court rejected the said
application by holding that while considering application
under Order 7 Rule 11 CPC, correctness of the plaint
averments cannot be examined and plaint can be
rejected if no cause of action is disclosed from the
plaint averments. Revisional Court affirmed Trial Court's
order.
5. The provision contained in Order 7 Rule 11
CPC is extracted below:-
"11. Rejection of plaint. The plaint shall 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;
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court,
for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature
for correcting the valuation or supplying the requisite
stamp-paper, as the case may be, within the time fixed
by the Court and that refusal to extend such time
would cause grave injustice to the plaintiff."
6. From the aforesaid provision, it is revealed
that a plaint can be rejected when- (i) it does not
disclose a cause of action; (ii) the relief claimed is
undervalued and not corrected within the time allowed
by Court; (iii) plaint is insufficiently stamped and is not
rectified within the time granted by the Court; (iv) the
suit is barred by law; (v) plaintif has failed to enclose
required copies of plaint; and (vi) plaintiff fails to
comply with provision of Rule 9.
7. It is now well settled that power under Order
7 Rule 11 CPC can be exercised at any stage of suit,
before registering the plaint or after issuing summons
to defendant or at any time before conclusion of trial.
8. Hon'ble Supreme Court has held that for
deciding an application under Clause (a) & (d) of Rule
11 of Order 7 CPC, the averment made in the plaint are
germane and the plea taken by defendant in the
written statement would be wholly irrelevant. Hon'ble
Supreme Court while considering somewhat similar
facts in the case of Soumitra Kumar Sen v. Shyamal
Kumar Sen, (2018) 5 SCC 644 has held that the
defence taken by defendant cannot be looked at while
deciding application under Order 7 Rule 11 CPC,
however, the question raised by defendant regarding
maintainability of suit, which goes to root of the matter,
can be decided by the Trial Court before deciding other
issues. Para 9 and 12 of said judgment are extracted
below:-
"9. In the first instance, it can be seen that insofar
as relief of permanent and mandatory injunction is
concerned that is based on a different cause of
action. At the same time that kind of relief can be
considered by the trial court only if the plaintiff is
able to establish his locus standi to bring such a suit.
If the averments made by the appellant in their
written statement are correct, such a suit may not be
maintainable inasmuch as, as per the appellant it has
already been decided in the previous two suits that
Respondent 1-plaintiff retired from the partnership
firm much earlier, after taking his share and it is the
appellant (or appellant and Respondent 2) who are
entitled to manage the affairs of M/s Sen Industries.
However, at this stage, as rightly pointed out by the
High Court, the defence in the written statement
cannot be gone into. One has to only look into the
plaint for the purpose of deciding application under
Order 7 Rule 11 CPC. It is possible that in a cleverly
drafted plaint, the plaintiff has not given the details
about Suit No. 268 of 2008 which has been decided
against him. He has totally omitted to mention about
Suit No. 103 of 1995, the judgment wherein has
attained finality. In that sense, the plaintiff-
Respondent 1 may be guilty of suppression and
concealment, if the averments made by the appellant
are ultimately found to be correct. However, as per
the established principles of law, such a defence
projected in the written statement cannot be looked
into while deciding application under Order 7 Rule 11
CPC.
12. Before we part with, it is necessary to make
certain comments. The appellant has mentioned
about the earlier two cases which were filed by
Respondent 1 and wherein he failed. These are
judicial records. The appellant can easily
demonstrate the correctness of his averments by
filing certified copies of the pleadings in the earlier
two suits as well as copies of the judgments passed
by the courts in those proceedings. In fact, copies of
the orders passed in judgement and decree dated
31-3-1997 passed by the Civil Judge (Junior
Division), copy of the judgment dated 31-3-1998
passed by the Civil Judge (Senior Division) upholding
the decree passed by the Civil Judge (Junior Division)
as well as copy of the judgment and decree dated
31-7-2014 passed by Civil Judge, Junior Division in
Suit No. 268 of 2008 are placed on record by the
appellant. While deciding the first suit, the trial court
gave a categorical finding that as per MoU signed
between the parties, Respondent 1 had accepted a
sum of Rs 2,00,000 and, therefore, the said suit was
barred by principles of stoppels, waiver and
acquiescence. In a case like this, though recourse to
Order 7 Rule 11 CPC by the appellant was not
appropriate, at the same time, the trial court may,
after framing the issues, take up the issues which
pertain to the maintainability of the suit and decide
the same in the first instance. In this manner the
appellant, or for that matter the parties, can be
absolved of unnecessary agony of prolonged
proceedings, in case the appellant is ultimately found
to be correct in his submissions."
(Emphasis Supplied)
9. In the case of Shakti Bhog Food Industries
Ltd. v. Central Bank of India, (2020) 17 SCC 260,
Hon'ble Supreme Court has held as under:-
"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 decision
of this Court in Ram Prakash Gupta v. Rajiv Kumar
Gupta [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 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 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
meaningful--not formal--reading 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 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, 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, 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 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. 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 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 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, 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 [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 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 [Raptakos Brett & Co.
Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar
(H.K.) Ltd. v. Vessel M.V. Fortune Express [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 , wherein while
considering the very same provision i.e. Order 7 Rule
11 and the duty of the trial court in considering such
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."
9. We may also advert to the exposition of this
Court in Madanuri Sri Rama Chandra Murthy v. Syed
Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal,
(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] . In para
7 of the said decision, this Court has succinctly restated
the legal position as follows: (SCC pp. 178-79)
"7. The plaint can be rejected under Order 7 Rule 11
if conditions enumerated in the said provision are
fulfilled. It is needless to observe that the power under
Order 7 Rule 11 CPC can be exercised by the Court at
any stage of the suit. The relevant facts which need to
be looked into for deciding the application are the
averments of the plaint only. If on an entire and
meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and meritless in the sense
of not disclosing any right to sue, the court should
exercise power under Order 7 Rule 11 CPC. Since the
power conferred on the Court to terminate civil action
at the threshold is drastic, the conditions enumerated
under Order 7 Rule 11 CPC to the exercise of power of
rejection of plaint have to be strictly adhered to. The
averments of the plaint have to be read as a whole to
find out whether the averments disclose a cause of
action or whether the suit is barred by any law. It is
needless to observe that the question as to whether the
suit is barred by any law, would always depend upon
the facts and circumstances of each case. The
averments in the written statement as well as the
contentions of the defendant are wholly immaterial
while considering the prayer of the defendant for
rejection of the plaint. Even when the allegations made
in the plaint are taken to be correct as a whole on their
face value, if they show that the suit is barred by any
law, or do not disclose cause of action, the application
for rejection of plaint can be entertained and the power
under Order 7 Rule 11 CPC can be exercised. If clever
drafting of the plaint has created the illusion of a cause
of action, the court will nip it in the bud at the earliest
so that bogus litigation will end at the earlier stage."
10. In the case of Srihari Hanumandas Totala v.
Hemant Vithal Kamat, (2021) 9 SCC 99, Hon'ble
Supreme Court has laid down the following guiding
principles for deciding an application under Order 7
Rule 11 CPC, which are extracted below:-
"25.1. To reject a plaint on the ground that the
suit is barred by any law, only the averments in
the plaint will have to be referred to.
25.2. The defence made by the defendant in
the suit must not be considered while deciding
the merits of the application.
25.3. To determine whether a suit is barred by
res judicata, it is necessary that (i) the
"previous suit" is decided, (ii) the issues in the
subsequent suit were directly and substantially
in issue in the former suit; (iii) the former suit
was between the same parties or parties
through whom they claim, litigating under the
same title; and (iv) that these issues were
adjudicated and finally decided by a court
competent to try the subsequent suit.
25.4. Since an adjudication of the plea of res
judicata requires consideration of the pleadings,
issues and decision in the "previous suit", such a
plea will be beyond the scope of Order 7 Rule
11(d), where only the statements in the plaint
will have to be perused."
11. Now coming back to the facts of the present
case. Merely by reading the plaint, it cannot be held to
be vexatious or frivolous. The said aspect can be
decided during trial, after considering the defence of
the petitioners, as held in the case of Soumitra Kumar
Sen (supra).
12. From the aforesaid judgments, it is succinctly
clear that while deciding an application under Order 7
Rule 11 CPC, the averments made in the plaint alone
are to be considered; since the power conferred on the
Court to terminate civil action at the threshold is
drastic, the conditions enumerated under Order 7 Rule
11 CPC to the exercise of power of rejection of plaint
have to be strictly adhered to. The averments of the
plaint have to be read as a whole to find out whether
averments disclose a cause of action or whether suit is
barred by any law. The averments in the written
statement as well as the contentions raised by
defendants for rejection of plaint are wholly immaterial
while deciding application for rejection of plaint.
13. Petitioners have relied upon an agreement,
allegedly executed in their favour by the plaintiff for
contending that the suit is frivolous and their
possession is legal. Whether the plaintiff executed said
agreement and effect of the recitals made in the
agreement would be subject matter of trial. Plaint of
the suit cannot be rejected based on some document
relied by defendants in their application under Order 7
Rule 11 CPC.
14. Learned counsel for the petitioners submits
that in the suit, plaintiff suppressed the fact that he
had handed over possession of the land in question to
defendants, in terms of an agreement, therefore the
suit is vexatious, therefore plaint was liable to be
rejected. Whether plaintiff is signatory to the
agreement and whether plaintiff handed over physical
possession of the land in question to defendants, is a
question of fact, which cannot be gone in while
considering application for rejection of plaint.
15. Thus, the order passed by Trial Court as
affirmed by Revisional Court cannot be faulted. The
reasoning given by both the learned Courts for deciding
the application against defendants / writ-petitioners is
in consonance with the law of the land.
16. Learned counsel for petitioners then
submitted that the suit is barred by Section 41 of
Specific Relief Act, therefore, the plaint should have
been rejected by Trial Court. Both the learned Courts
below have dealt with the said contention and held that
defendants could not substantiate how the suit is
barred by said provision. Before this Court also, no
submission was advanced regarding applicability of bar
contained in Section 41 of Specific Relief Act to the suit
filed by respondent.
17. The scope of Order 7 Rule 11 CPC cannot be
enlarged and going by the plaint averments, learned
Trial Court was justified in rejecting the application filed
by petitioners. The objection that the suit is barred by
Section 41 of Specific Relief Act can very well be
considered by the Trial Court at an appropriate stage.
18. For the aforesaid reasons, judgment rendered
by Hon'ble Supreme Court in the case of T.
Arivandandam v. T.V. Satyapal, (AIR 1977 SC 2421) do
not support the case of the petitioners. The judgment
rendered in the case of S.P. Chengalvaraya Naidu
(dead) by L.Rs. v. Jagannath (dead) by L.Rs., (1994) 1
SCC 1 is distinguishable on facts. Thus, there is no
scope for interference in the matter while exercising
power under Article 227 of the Constitution.
19. The writ petitions fail and are dismissed.
________________________
MANOJ KUMAR TIWARI, J.
Dt: 17.06.2025
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