# Amarkant Vijaywar & Ors. Revisionists v. Vipnesh Kumar & Ors

- **Citation:** (2026) 4 ILRA 1549
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-20
- **Case number:** Civil Revision No. 38 of 2025
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amarkant-vijaywar-ors-revisionists-v-vipnesh-kumar-ors-54688
- **Pages:** 6

## Text

4 All. Amarkant Vijaywar & Ors. Vs. Vipnesh Kumar & Ors.
1549
the same being tenant. PW1 further admitted that the present case lodged against the accused is
false and has been filed maliciously by his father. PW1, although in one breath has tried to produce
the allegations not only in his chief but also in his cross examination that he suffered the atrocities
of unnatural offence at the hand of accused, but on next moment testified that entire prosecution
was malicious and an attempt to get rid of payment of rental dues. Thus, this witness has blown hot
and cold in same breath. Therefore, in light of admission made by PW1, even if at a time it
appeared that he corroborated the story of prosecution, possibility cannot be ruled out that the child
has been tutored to depose against the accused and he is susceptible to be won over due to his
tender age. If for the sake of argument, it is assumed that some offence has been committed with
the victim, then also finding recorded by learned Trial Court that this child deposed at different
places differently and observed him not to be reliable witness, has guaranteed the presumption of
innocence of the accused, which cannot be taken away without any concrete and plausible
evidence.

22. On the basis of norms set up by settled legal principles and on the basis of evidence placed
on record, we have gathered the view that learned Trial Court has taken best probable view as
outcome of the case in hand while discussing the entire facts and circumstances. Nothing adverse
has been brought on record by the prosecution to hilt which may leave the tinge of doubt. No
arguable points have been made out by the applicants that would convince us to grant the leave of
appeal. The purpose of Section 378(3) of CrPC is to ensure that the accused is not kept waiting for
years for a relief which may be granted to him at early stage to save his right of life and personal
liberty.

23. Keeping in view the aforesaid failure of prosecution to establish any prima facie ground
warranting interference with the order of the learned Trial Court, the prayer for grant of leave to
appeal is hereby refused and the instant application is dismissed accordingly. Resultantly, the
memorandum of appeal does not survive and stands dismissed.
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(2026) 4 ILRA 1549
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2026

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Civil Revision No. 38 of 2025

Amarkant Vijaywar & Ors. ...Revisionists
Versus
Vipnesh Kumar & Ors. ...Opposite Parties

Issue for Consideration
Whether the plaint was liable to be rejected under Order VII Rule 11 (d) CPC as the suit was barred by Order
II Rule 2 CPC and Section 34 of the Specific Relief Act, 1963 and, and whether the order impugned be set
aside and the plaint be rejected.
1550 INDIAN LAW REPORTS ALLAHABAD SERIES
Head Notes
The Code of Civil Procedure-1908- Order II Rule 2; Order VII Rule 11- Order VII Rule 11 deals
with rejection of plaint and not the 'right to sue being barred'. Qua expression "barred by any
law", it The provision of Order II Rule 2 does not bar the filing of any suit but sub-rules (2) and
(3) forbid the suing for certain claims which have been relinquished or certain reliefs which have
been omitted to sue in the earlier suit in respect of which a plaintiff cannot sue for those claims
or reliefs by filing a subsequent suit. Under Order II Rule 2 of the Code, the right to sue is taken
away in terms of sub-rules (2) and (3) thereof which means that the suit could not have been
filed at all. On the other hand, under Order VII Rule 11(d), there is "no bar to sue" but "the suit
is barred by law"- The application of Order II Rule 2 CPC to a case can result in denial of reliefs
being granted to a plaintiff which may, in certain cases, also result in dismissal of the suit itself
but it does not result in rejection of the plaint under Order VII Rule 11 (d) of the Code.

Partial substance in the submissions made on behalf of the revisionists that, on the one hand the
Court has deferred adjudication of the pleas raised to the stage of framing issues and leading
evidence, at the same time, plea of limitation has been decided in favour of the respondent.

Held- Finding recorded by the trial court in the order impugned only to the effect that challenge laid by the
respondent is not barred by limitation, is set aside, however, the same shall be adjudicated after framing of
issues- Revision partly allowed. (E-15)

(Para 16, 17, 18 & 22)

Case Law Cited
Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557; R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275;

List of Acts
The Code of Civil Procedure-1908

List of Keywords
Order II Rule 2; Order VII Rule 11; "barred by any law"; 'right to sue being barred'; "no bar to sue" but "the
suit is barred by law"

Case Arising From
Revision under Section 115 CPC at the instance of defendants in O.S. No. 394 of 2023 (re-numbered as 22 of
2023), raises challenge to the order dated 24.01.2025, whereby the learned Additional District and Sessions
Judge/Fast Track Court, Agra has rejected an application 31-C filed on behalf of the revisionists under Order
VII Rule 11 CPC, consequence whereof is that the plaint of the suit survives as on date.

Appearances for Parties
Counsel for Revisionist(s) : Amit Kumar Asthana, Ved Prakash Shukla, Vineet Kumar Singh
Counsel for Opposite Party(s) : Neeraj Dwivedi, Pankaj Agarwal, Vivek Saran (elevated)

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Vineet Kumar Singh, learned counsel for the applicants in revision
(revisionists), Shri Pankaj Agarwal, learned counsel for the respondent no. 1 (respondent) and Shri
Neeraj Dwivedi, learned counsel for the proforma respondents no. 2, 3 and 4.

THE CHALLENGE
4 All. Amarkant Vijaywar & Ors. Vs. Vipnesh Kumar & Ors.
1551

2. The instant revision under Section 115 CPC at the instance of defendants in O.S. No. 394 of
2023 (re-numbered as 22 of 2023), raises challenge to the order dated 24.01.2025, whereby the
learned Additional District and Sessions Judge/Fast Track Court, Agra has rejected an application
31-C filed on behalf of the revisionists under Order VII Rule 11 CPC, consequence whereof is that
the plaint of the suit survives as on date.

BRIEF FACTS

3. The property in dispute was allotted in favour of the revisionists by Awas Vikas Parishad on
02.01.1993/28.02.2023. The allotment was cancelled and a fresh allotment was made in favour of
the respondent on 03.03.1993. The revisionists earlier filed an Original Suit No. 252 of 1993
claiming relief for declaring the auction made in favour of respondent as null and void and for
declaring the allotment made earlier in favour of the revisionists as valid. The suit was decreed exparte on 18.10.1996. The decree was put into execution, wherein the respondent filed objections
under Section 47 CPC. The same were rejected, against which a revision was preferred, which was
also dismissed and Writ-C No. 9100 of 2015 filed by him was also dismissed on 16.02.2015.

4. After dismissal of the said writ petition, a suit being O.S. No. 296 of 2015 was filed by the
respondent seeking setting aside of the ex-parte decree dated 18.10.1996. The plaint of the said suit
was rejected under Order VII Rule 11 CPC holding the suit as barred by limitation. Civil Appeal
filed thereagainst was dismissed and now the matter is pending before this Court in the form of
Second Appeal.

5. Another suit being O.S. No. 394 of 2023 (re-numbered as 22 of 2023) giving rise to this
revision was filed by the respondent with a prayer to declare the allotment order dated 28.02.2023
passed in favour of the revisionists as illegal, invalid, void and liable to be recalled, set aside and
quashed. A further prayer was made to restrain the defendants in the suit, i.e. the Awas Vikas
Parishad and its officials, from executing any sale deed and delivering possession in favour of the
revisionist.

6. In the meantime, a fresh allotment was made and a sale deed was also executed in favour of
the revisionists on 05.04.2023 in execution of the decree drawn in previous O.S. No. 252 of 1993
and challenge laid to the execution proceedings at the behest of the Awas Vikas Parishad was
turned down upto Hon'ble Supreme Court.

SUBMISSIONS ON BEHALF OF THE REVISIONISTS

7. It is contended on behalf of the revisionists that, based upon the finality attached not only to
the allotment but also the sale deed executed in furtherance of order passed by the executing court
even before institution of the suit giving rise to the present revision, the suit is barred by law and,
therefore, the plaint was liable to be rejected. It is further submitted that the plaint has been
amended by the respondent and the relief which has now been claimed by way of amendment,
could be claimed even at the time of filing of earlier suit in the year 2015 and, therefore, the plaint
was liable to be rejected under Order VII Rule 11 (d) CPC as the suit was barred by Order II Rule 2
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
CPC and Section 34 of the Specific Relief Act, 1963 and, therefore, the order impugned be set
aside and the plaint be rejected.

8. It is further submitted that though all the pleas raised by the revisionists were discussed by
the trial court, an erroneous finding has been recorded that the suit is not barred by limitation and,
then, after observing that the questions raised by the revisionists are mixed questions of fact and
law and that the same shall be decided after framing proper issues, the application has been
illegally rejected.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

9. Learned counsel for respondent submits that every adjudication made in favour of the
revisionists is ex-parte qua the respondent in the sense that the first Suit No. 252 of 1993 was filed
by the revisionists only against the officials of Awas Vikas Parishad and, therefore, the decree
obtained by the revisionists and consequences flowing therefrom are not binding against the
respondent.

10. It is further submitted that the objections filed by the respondent under Section 47 CPC
were not decided on merits, rather the same were rejected only on the ground that he was not a
party to the proceedings. It is, therefore, contended that since the pleas raised by the respondent in
execution proceedings were rejected, he had no option but either to raise his claim under Order
XXI Rule 97 CPC as observed by this Court while deciding Writ-C No. 9100 of 2015 or by way of
a separate suit which he filed in the year 2015 but plaint thereof was rejected, however, the matter
is now subjudice before this Court in the form of Second Appeal.

11. It is further submitted that the sale deed relied upon by the revisionists is without delivery
of possession in respect whereof specific averments have been made in the amended plaint,
particularly para 15(f) thereof, and, therefore, all the questions raised inter se parties require
adjudication on merits.

SUBMISSIONS IN REJOINDER

12. In rejoinder, learned counsel for revisionists submits that once title stood vested in their
favour pursuant to the sale deed, cancellation whereof has not been prayed for in appropriate terms,
the challenge initially laid to the subsequent allotment made in furtherance of the execution
proceedings and indirect challenge to the sale deed dated 05.04.2023 is not sustainable. It is further
contended that more than Rs. 25,00,00/- (twenty five lakh) was deposited by the revisionists and
even though possession has been delivered to them, they are unable to raise constructions on the
plot in question as time limit fixed by the Awas Vikas Parishad for the said purpose has already
expired on account of litigation pending between the parties and an order of status quo passed in
F.A.F.O. No. 1104 of 2024 by this Court arising out of suit giving rise to the present revision itself.

DISCUSSION

13. I have considered the submissions made and have perused the material available on record.
4 All. Amarkant Vijaywar & Ors. Vs. Vipnesh Kumar & Ors.
1553

14. The proceedings of different suits and the result thereof not being in dispute, the Court has
to confine its adjudication within the four corners of Order VII Rule 11 CPC, which provides that
when plaint, from the statement made therein, appears to be barred by any law [sub-rule (d) of Rule
11], it shall be rejected. It has been held in Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC
557 that the relevant facts which need to be looked into for deciding an application thereunder are
the averments in the plaint and the pleas taken by the defendant in the written statement would be
wholly irrelevant at that stage. In R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275, it was
reiterated that the consideration of the application should not be on the basis of the allegations
made by the defendant in his written statement and the court has to consider only the plaint as a
whole.

15. Since bar of suit under Order II Rule 2 C.P.C. has been emphatically argued, the Court
may observe that Order II Rule 2 deals with the reliefs claimed in a suit in respect of a cause of
action. Order II Rule 2(1) states that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit within the jurisdiction of any court. Order II Rule 2(2)
states that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of
his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Order II
Rule 2(3) states that a person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs; but if he omits, to sue for all such reliefs, except with the
leave of the court, he shall not afterwards sue for any relief so omitted.

16. 'Bar to sue' is distinct from a 'suit being barred by any law'. In the former, a suit cannot
commence at all and, therefore, would have to be dismissed by applying Order II Rule 2 CPC,
while in the latter case, a suit can commence but is not entertainable owing to a bar in law. Under
Order II Rule 2, a suit can be dismissed after recording evidence depending upon the facts and
circumstances of the case and on the analysis of the cause of action in a former suit and a
subsequent suit.

17. Order VII Rule 11 deals with rejection of plaint and not the 'right to sue being barred'. Qua
expression barred by any law, it is noted that the provision of Order II Rule 2 does not bar the
filing of any suit but sub-rules (2) and (3) forbid the suing for certain claims which have been
relinquished or certain reliefs which have been omitted to sue in the earlier suit in respect of which
a plaintiff cannot sue for those claims or reliefs by filing a subsequent suit. Under Order II Rule 2
of the Code, the right to sue is taken away in terms of sub-rules (2) and (3) thereof which means
that the suit could not have been filed at all. On the other hand, under Order VII Rule 11(d), there is
no bar to sue but the suit is barred by law. In other words, the application of Order II Rule 2
CPC to a case can result in denial of reliefs being granted to a plaintiff which may, in certain cases,
also result in dismissal of the suit itself but it does not result in rejection of the plaint under Order
VII Rule 11 (d) of the Code. The said legal position has been thoroughly explained by the Hon'ble
Supreme Court very recently in S. Valliammai and others Vs. S. Ramanathan and another: Civil
Appeal No. 3624 of 2024, decided on 16.04.2026.

18. In view of the above discussion, if the order impugned is perused, the Court finds partial
substance in the submissions made on behalf of the revisionists that, on the one hand the Court has
1554 INDIAN LAW REPORTS ALLAHABAD SERIES
deferred adjudication of the pleas raised to the stage of framing issues and leading evidence, at the
same time, plea of limitation has been decided in favour of the respondent. However, other
submissions made that, at this stage itself, the plaint be rejected without holding trial, cannot be
accepted as per the law laid down and referred.

19. Considering the record of proceedings and the scope of order under Order VII Rule 11
CPC, irrespective of the findings recorded in earlier litigations which may be germane and relevant
to the controversy involved in the present suit also, the same can be considered even in the form of
preliminary issues that may be framed by the trial court, if pressed. The submissions advanced in
this revision go beyond the purview of Order VII Rule 11 CPC, except the findings recorded on the
question of limitation at this stage.

20. As far as the grievance raised qua inability to raise constructions on account of order of
status quo operating in F.A.F.O. No. 1104 of 2024, no comment can be made in these proceedings
and the parties are at liberty to raise their respective pleas in the said appeal itself.

CONCLUSION

21. Consequently, the revision is allowed in part.

22. The finding recorded by the trial court in the order impugned only to the effect that
challenge laid by the respondent is not barred by limitation, is hereby set aside, however, the same
shall be adjudicated after framing of issues.

23. Considering the nature and length of litigation, it is directed that the trial court shall frame
issues within a period of two months from the date a certified copy of this order is filed before it.
Thereafter, the suit shall be posted for further proceedings including adjudication based upon
preliminary issues, if they are framed, and the court shall make all endeavour to dispose of the
proceedings in accordance with law with utmost expedition without granting unnecessary
adjournment to the parties, by fixing short dates on weekly basis.
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(2026) 4 ILRA 1554
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2026

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE VINAI KUMAR DWIVEDI, J.

Habeas Corpus Writ Petition No. 128 of 2026

Amit Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents