# Braj Bhooshan Mittal v. Jeet Singh

- **Citation:** (2020) 9 ILRA 254
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-07
- **Case number:** Second Appeal No. 1111 of 2009
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braj-bhooshan-mittal-v-jeet-singh-45934
- **Pages:** 14

## Headnote

Civil Law - Limitation Act, 1963 -Article
54-Suit For Specific Performance-date for
performance not fixed-refusal to perform
was in 1994-suit filed in 2001-barred u/A
54 of the Limitation Act.

Second Appeal dismissed. (E-9)

Cases referred: -

## Text

_Characters 0–39,782 of 47,382. This is a partial read: ask again with offset=39782 for what follows._

254 INDIAN LAW REPORTS ALLAHABAD SERIES

90. The notices and the proceedings
taken out by the cantonment authorities,
regarding illegal constructions have been
upheld as lawful. The proceedings have to
run their course. Long years have passed
since the proceedings were stalled, by
interdicts of the courts. In view of the holding
of this Court, following directions are issued
to the appellant/competent authority:

I. The appellant/competent authority
shall proceed with the adjudication of the
controversy, in pursuance of the said notices
issued to the plaintiffs-respondents under
various provisions of the Cantonments Act,
1924 (as amended from time to time).

II. Fresh copies of the said
notices shall be issued to the plaintiffsrespondents, within a period of four months
from the date of receipt of a certified copy
of this order.

III.
The
plaintiffs-respondents
shall be granted six weeks time to tender
their reply to the said notices.

IV.
The
competent
appellant/cantonment authority shall thereafter
decide the controversy on its merits by a reasoned
and speaking order, to be passed within a period of
three months, from the date of receipt of the reply
of the plaintiffs-defendants.

V.
In
case
the
plaintiffsrespondents do not respond to the aforesaid
notices or fail to tender their reply to the
same, the appellant/competent authority,
shall be at full liberty to proceed against
them in accordance with law.

91. The appeal is allowed.
----------
(2020)09ILR A254
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2020

BEFORE
THE HON'BLE RAVI NATH TILHARI, J.
Second Appeal No. 1111 of 2009

Braj Bhooshan Mittal ...Appellant
Versus
Jeet Singh ...Respondent

Counsel for the Appellant:
Sri Vijaya Prakash

Counsel for the Respondent:

Civil Law - Limitation Act, 1963 -Article
54-Suit For Specific Performance-date for
performance not fixed-refusal to perform
was in 1994-suit filed in 2001-barred u/A
54 of the Limitation Act.

Second Appeal dismissed. (E-9)

Cases referred: -

1. Gunwantbhai Mulchand Shah & ors. Vs Anton
Elis Farel & ors, AIR 2006 SC 40

2.Kanailal & ors. Vs Ram Chandra & ors. (2018)
13 SCC 715

3. R.K. Parvatharaj Gupta Vs K.C. Jayadeva
Reddy, (2006) 2 SCC 428

4. Ahmmadsahab Abdul Mulla (2)(D) By(LRs) Vs
Bibijan & ors., (2009) 5 SCC 462

5. Madina Begum & anr. Vs Shiv Murti Prasad
Pandey & ors., (2016) 15 SCC 327

6.Janardhanam Prasad Vs Ramdas, reported in
(2007) 15 SCC 174

7.Church
of
Christ
Charitable
Trust
&
Educational
Charitable
Society,
Vs
M/s
Ponniamman Educational Trust, (2012) 8 SCC
706

8. Kuldeep Singh Pathania Vs Bikram Singh
Jaryal, (2017) 5 SCC 345

9. Madanuri Sri Ram Chanda Murthy Vs Syed
Jalal, (2017) 13 SCC 174

10. Chhotanben & anr. Vs Kiritbhai Jalkrushnabhai
Thakkar
&
ors.,
(2018)
6
SCC
422
9 All. Braj Bhooshan Mittal Vs. Jeet Singh
255
11.
Madiraju
Venkata
Ramana
Raju
Vs
Peddireddigari
Ramachandra
Reddy
&
ors.,(2018) 14 SCC 1

12.Fatehji & Company & anr Vs L.M. Nagpal &
ors., (2015) 8 SCC 390

13. S. Brahmanand & ors. vs K. R. Muthugopal
& ors. AIR 2006 SC 40

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. This second appeal has been filed
challenging the judgment dated 18.7.2009
and the decree dated 22.7.2009 passed by
the learned Additional District Judge, Court
No.11, Meerut in Regular Civil Appeal
No.41 of 2008 (Braj Bhooshan Mithal vs.
Jeet Singh) dismissing the appeal arising
out of O.S. No.130 of 2008, filed by the
plaintiff-appellant which was dismissed by
the learned Civil Judge (Junior Division),
City Meerut vide the judgment dated
11.3.2008 and the decree dated 17.3.2008,
rejecting the plaint as barred by the
provisions of Order VII Rule 11 of Code of
Civil Procedure, 1908(CPC).

2. The facts of the case are that the
plaintiff-appellant
had
instituted
O.S.
No.130 of 2001(Braj Bhooshan Mithal vs.
Jeet Singh) before Civil Judge (Junior
Division),
City,
Meerut
for
specific
performance of contract, directing the
defendant-respondent to execute the sale
deed in pursuance of the registered
agreement to sell dated 04.01.1983, in
favour of the plaintiff-appellant in respect
of land of Khata No.39, Khasra No.27, area
0-15-0, Khata No.33/1, area 2-0-0 and
Khasra No. 84/12 Min. area 1-10-00; total
3 numbers, total area 4-5-0, situated in
village Mohammadpur Goomi, pargana,
tehsil and district Meerut, after receiving
the balance of the sale consideration of
Rs.2000/ from the appellant out of the total
sale consideration of Rs.17000/-, as an
amount of Rs.15,000/- had already been
paid to the defendant-respondent, at the
time of registration of agreement to sell.
The plaintiff-appellant's case is that as per
the agreement to sell the defendantrespondent had to obtain permission from
the competent authority(Ceiling), Meerut
and intimate the plaintiff-appellant through
registered post, and the plaintiff-appellant
had to get the sale deed executed, within a
period of one year from the date of receipt
of said registered intimation after making
payment of the balance of the sale
consideration. The plaintiff-appellant sent a
notice to the defendant-respondent on
31.12.1993, requesting him to be present at
the office of Sub Registrar, Meerut on
28.1.1994 for execution of sale deed but the
defendant-respondent did not accept notice
sent through registered post. However,
notice sent through UPC was served upon
the defendant-respondent. On 28.1.1994,
the plaintiff-appellant remained present at
the office of Sub Registrar, Meerut for
execution/registration of the sale deed but
the defendant-respondent did not turn up.
On the next day the defendant-respondent
approached
plaintiff-appellant;
offered
excuses and assured that he would execute
the sale deed after completing the requisite
formalities but he did not execute the sale
deed in spite of many oral and written
requests. The plaintiff-appellant as such
sent
another
notice
dated
4.1.2001,
requesting the defendant-respondent to be
present at the office of Sub Registrar,
Meerut for execution of the sale deed on
30.1.2001 but on that date also defendantrespondent did not appear and sent an
evasive reply. It was also pleaded that time
was not the essence of contract and the
possession of the land had already been
delivered to the plaintiff- appellant at the
time of registration of the agreement to sell.
256 INDIAN LAW REPORTS ALLAHABAD SERIES
The plaintiff-appellant had always been and
is still ready and willing to perform his part
of the contract.

3. The defendant-respondent filed
written statement. He denied execution of
agreement to sell in favour of plaintiffappellant. He pleaded that the value of the
land in question is Rs.20-00 lac and in the
year 1983 it was about Rs.5-00 lac,
therefore,
question
of
execution
of
registered agreement to sell for a sale
consideration of Rs.17,000/- did not arise.
The defendant-respondent pleaded that the
suit was barred by time and the plaint was
liable to be rejected under Order VII Rule
11 C.P.C.

4. Learned trial court on 12.7.2004
framed issues in the suit. Issue No.4 as
framed, is as follows:-

"Whether the plaintiff's suit is barred
by the provisions of Order VII Rule 11 C.P.C.?"

5. Learned Civil Judge (Junior Division),
City, Meerut, decided Issue No.4 in the
affirmative i.e. against the plaintiff-appellant,
holding that the suit was barred by Order VII
Rule 11 C.P.C., being barred by time, and
dismissed the suit by the judgment dated
11.3.2008 and the decree dated 17.3.2008.

6. The plaintiff-appellant preferred
Regular Civil Appeal No.41 of 2008 (Braj
Bhooshan Mithal vs. Jeet Singh) before the
learned District Judge, Meerut. The appeal
was
dismissed
by
judgment
dated
18.7.2009 and the decree dated 22.7.2009,
passed by the learned Additional District
Judge, Court No.11, Meerut.

7. The appellate court affirmed the
judgment and decree passed by the trial
court. It held that the trial court rightly
concluded that the limitation to file the suit
by the plaintiff-appellant would commence
from 28.1.1994 and the suit filed in the
year 2001 was barred by limitation.

8. The second appeal is for admission
under Order XLI Rule 11 C.P.C.

9. Sri Vijay Prakash Yadav, learned
counsel for the appellant was heard.

10. Sri Vijay Prakash Yadav, learned
counsel for the plaintiff-appellant submitted
that as the registered notice sent to the
defendant-respondent on 4.1.2001 requesting
him to remain present in the office of the Sub
Registrar,
Meerut
on
30.1.2001
for
execution/registration of the sale deed was not
complied with by the defendant-respondent,
the suit filed on 8.3.2001 was within the period
of limitation of three years from 30.1.2001.
His submission is that the period of limitation
would start running from 30.1.2001 and not
from the date of non compliance with the
earlier notice dated 31.12.1993 by which the
defendant-respondent was requested to be
present in the office of the Sub Registrar on
28.1.1994.

11. He has next submitted that the
rejection of plaint under Order VII Rule 11
C.P.C. is not justified and the suit should
have been decided on merits after evidence.

12. Learned counsel for the appellant
has placed reliance upon the decision of the
Hon'ble Supreme Court in the case of
Gunwantbhai Mulchand Shah & Ors vs
Anton Elis Farel & Ors, reported in AIR
2006 SC 40.

13. I have considered the submissions
advanced by the learned counsel for the
9 All. Braj Bhooshan Mittal Vs. Jeet Singh
257
appellant and perused the record of the
second appeal.

14. Before proceeding further, it is
considered appropriate to refer to the
judgment of the Hon'ble Apex Court in the
case of Kanailal & Ors. v. Ram Chandra
& Ors. reported in (2018) 13 SCC 715, in
which it has been held that while deciding
the second appeal which lies only to the
High Court, the Court has to ensure
compliance of the requirements of Section
100 of the Code in addition to the
requirements of Order XLI Rule 31 of the
Code. It has further been held that the High
Court while hearing the appeal at the time
of admission has to first find out whether
the second appeal involves any substantial
question of law(s) and if it is involved then
substantial question(s) of law is/are to be
formulated and then the appeal can be
heard only on such formulated question (s).
If, however, the Court at the time of
hearing the appeal on the question, comes
to a conclusion that the appeal does not
involve such question within the meaning
of Section 100 C.P.C., then it has to pass a
reasoned order keeping in view the
requirements of Order 41 Rule 31 C.P.C. It
is relevant to reproduce paragraphs 11 to 16
of the judgment in Kanailal (supra) as
under:-

"11) That apart, Order 41 Rule 31
of the Code which deals with the contents,
date and the signature of judgment is also
apposite to take note of. It reads as under:

"31. Contents, date and signature
of
judgment.-
The
judgment
of
the
Appellate Court shall be in writing and
shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision;
and

(d) where the decree appealed
from is reversed or varied, the relief to
which the appellant is entitled, and shall at
the time that it is pronounced be signed and
dated by the Judge or by the Judges
concurring there in."

12) It is clear from mere reading
of the Rule 31(a) to (d) that it makes it
legally obligatory upon the Appellate Court
(both-first and second Appellate Court) as
to what should the judgment of the
Appellate Court contain.

13) Sub-clause(a) provides that
the judgment must formulate and state the
points arising in the case for determination.
Sub-clause(b) provides that the Court must
give decision on such points and sub-
clause(c) provides that the judgment shall
state the reasons for the decision. So far as
sub-clause

(d) is concerned, it applies in
those cases where the Appellate Court has
reversed the decree. In such case, the Court
has to specify the relief to which the
appellant has become entitled to as a result
of the decree having been reversed in
appeal at his instance.

14) While deciding the second
appeal which lies only to the High Court,
the Court has to further ensure compliance
of the requirements of Section 100 of the
Code in addition to the requirements of
Order 41 Rule 31 of the Code set out
above.

15) In other words, the High
Court while hearing the second appeal at
the time of its admission has to first find out
whether the second appeal involves any
substantial question(s) of law and if the
Court finds that the appeal does involve
any substantial question(s) of law then such
question(s)
is/are
required
to
be
formulated. The appeal can be then heard
finally only on such formulated question(s).
(See Santosh Hazari (supra).
258 INDIAN LAW REPORTS ALLAHABAD SERIES

16) If however, the Court, at the
time of hearing the appeal on the question
of admission, comes to a conclusion that
the appeal does not involve any such
question within the meaning of Section 100
of the Code, then it has to pass a reasoned
order keeping in view the requirements of
Order 41 Rule 31 set out above. Indeed,
this being the mandatory requirements of
law, its non-compliance by the Appellate
Court render their judgment bad in law. It
has further been held that of law, its noncompliance by the Appellate Court render
their judgment bad in law."

15. In view of the submissions
advanced,
following
point
arises
for
determination, for admission:-

"Whether the plaint has rightly
been rejected under Order VII Rule 11
C.P.C.?"

16. Both the learned courts below
have held that the date for performance was
not fixed and in view of the refusal of the
defendant-respondent on 28.1.1994 of
performance,
the
suit
for
specific
performance filed in the year 2001 was
barred under Article 54 of the Limitation
Act.

17. At this stage, it would be
appropriate to consider the law on the point
of limitation for filing a suit for specific
performance of contract and on rejection of
plaint under Order VII Rule 11 C.P.C.

18. Article 54 of the Limitation Act
provides as under:-
Descri
ption
of suit
Peri
od
of
limi
tatio
n
Time from which period
begins to run.
For
specifi
c
perfor
mance
of
a
contra
ct.
Three years
The date fixed for the
performance, or, if no such
date is fixed, when the
plaintiff has notice that
performance is refused.

19. Thus, Article 54 of the Limitation
Act, is in two parts. It provides a period of
three years to institute a suit for specific
performance of contract. The period would
start running from the date fixed for the
performance. If any such date is not fixed
the period of limitation would start running
when
the
plaintiff
has
notice
that
performance is refused.

20. In R.K. Parvatharaj Gupta vs
K.C. Jayadeva Reddy, (2006) 2 SCC 428,
the Hon'ble Supreme Court has held that in
terms of the said Article(Article 54), a suit
for specific performance of a contract is
required to be filed within three years; in
the event no date is fixed for the
performance, from the date when the
plaintiff has notice that performance is
refused. Paragraph 10 of this judgment is
reproduced as under:-

"10. In terms of the said Article, a
suit for specific performance of a contract
is required to be filed within three years; in
the event no date is fixed for the
performance, within a period of three years
from the date when the plaintiff has notice
that performance is refused."

21. In the case of Ahmmadsahab
Abdul Mulla (2)(D) By(LRs) vs Bibijan
& Ors, (2009) 5 SCC 462 the Hon'ble
Supreme Court held that the expression
`date' used in Article 54 of the Schedule to
the Limitation Act, is a crystallized notion.
When a date is fixed it means there is a
definite date fixed for doing a particular
act. The expression 'date' is definitely
9 All. Braj Bhooshan Mittal Vs. Jeet Singh
259
suggestive of a specified date in the
calender. Again, 'when the plaintiff has notice
that performance is refused,' there is a
definite point of time, when the plaintiff
notices refusal. It is relevant to reproduce
paragraphs 11 and 12 of the report as under:-

"11. The inevitable conclusion is that
the expression `date fixed for the performance'
is a crystallized notion. This is clear from the
fact that the second part "time from which
period begins to run" refers to a case where no
such date is fixed. To put it differently, when
date is fixed it means that there is a definite date
fixed for doing a particular act. Even in the
second part the stress is on `when the plaintiff
has notice that performance is refused'. Here
again, there is a definite point of time, when the
plaintiff notices the refusal. In that sense both
the parts refer to definite dates. So, there is no
question of finding out an intention from other
circumstances.

12. Whether the date was fixed or
not
the
plaintiff
had
notice
that
performance is refused and the date thereof
are to be established with reference to
materials and evidence to be brought on
record. The expression `date' used in
Article 54 of the Schedule to the Act
definitely is suggestive of a specified date
in the calendar. We answer the reference
accordingly. The matter shall now be
placed before the Division Bench for
deciding the issue on merits."

22. In Madina Begum & Anr vs
Shiv Murti Prasad Pandey & Ors, (2016)
15 SCC 327, the Hon'ble Supreme Court
reiterated the same principle. It is relevant
to reproduce paragraphs 18 to 20 of the
report, as under:-

18. In Ahmadsahab Abdul Mulla
(2) (Dead) v. Bibijan and Ors.(2009) 5 SCC
462, the following question was considered
by a three judge Bench of this Court:
"Whether the use of the expression "date"
used in Article 54 of the Schedule to the
Limitation Act, 1963 (in short "the Act") is
suggestive of a specific date in the
calendar?"

19. While answering this question
on a reference made to the three judge
Bench, this Court considered the meaning
of the word "date" and "fixed" appearing in
Article 54. Upon such consideration, this
Court held that the expression "date fixed
for the performance" is a crystallized
notion. When a date is fixed it means there
is a definite date fixed for doing a
particular act. Therefore, there is no
question of finding out the intention from
other circumstances. It was reiterated that
the
expression
"date"
is
definitely
suggestive of a specified date in the
calendar. Paragraphs 11 and 12 of the
Report in this regard are of importance and
they read as follows:-

"11. The inevitable conclusion is
that the expression "date fixed for the
performance" is a crystallized notion. This
is clear from the fact that the second part
"time from which period begins to run"
refers to a case where no such date is fixed.
To put it differently, when date is fixed it
means that there is a definite date fixed for
doing a particular act. Even in the second
part the stress is on "when the plaintiff has
notice that performance is refused". Here
again, there is a definite point of time,
when the plaintiff notices the refusal. In
that sense both the parts refer to definite
dates. So, there is no question of finding out
an intention from other circumstances.

12. Whether the date was fixed or
not
the
plaintiff
had
notice
that
performance is refused and the date thereof
are to be established with reference to
materials and evidence to be brought on
260 INDIAN LAW REPORTS ALLAHABAD SERIES
record. The expression "date" used in
Article 54 of the Schedule to the Act
definitely is suggestive of a specified date
in the calendar. We answer the reference
accordingly. The matter shall now be
placed before the Division Bench for
deciding the issue on merits."

20. Quite independently and
without reference to the aforesaid decision,
another Bench of this Court in Rathnavathi
and Another v. Kavita Ganashamdas
(2015) 5 SCC 223 came to the same
conclusion. It was held in paragraph 42 of
the Report that a mere reading of Article 54
would show that if the date is fixed for the
performance of an agreement, then noncompliance with the agreement on the date
would give a cause of action to file a suit
for specific performance within three years
from the date so fixed. But when no such
date is fixed, the limitation of three years
would begin when the plaintiff has notice
that
the
defendant
has
refused
the
performance of the agreement. It was
further held, on the facts of the case that it
did not fall in the first category of Article
54 since no date was fixed in the agreement
for its performance."

23. In Janardhanam Prasad Vs.
Ramdas, reported in (2007) 15 SCC 174,
the Hon'ble Supreme Court has held that
the Court, in applying the period of
limitation, would first inquire as to whether
any time was fixed for performance of
agreement of sale. If it was so fixed, the
suit must be filed within the period of three
years, failing which the same would be
barred by limitation. Where, however, no
time for performance was fixed it is for the
Courts to find out the date on which the
plaintiff had notice that the performance
was refused and on arriving at a finding in
that behalf, to see whether the suit was filed
within three years thereafter.

24. This Court has, therefore, first, to
ascertain, if any date was fixed for
performance or if no date was fixed for
performance as to when the plaintiffappellant had notice that the performance
was refused. If the date for performance
was fixed i.e. if a specified date in the
calender, then the period of 3 years would
start running from that date to institute the
suit. But, if the date was not so fixed,
period of 3 years would start running from
the date the plaintiff-appellant had notice
that the performance had been refused by
the defendant-respondent.

25. There is no dispute that the period
of limitation is governed by Article 54 of
the Schedule to the Limitation Act.

26. Now, it is relevant to reproduce
the provisions of Order VII Rule 11 C.P.C.,
as under:-

"Order VII Rule 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;
9 All. Braj Bhooshan Mittal Vs. Jeet Singh
261

(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."

27. The scope of Order VII Rule 11
C.P.C. has been considered in various
judgments, of which some are mentioned
hereinafter. In Church of Christ Charitable
Trust & Educational Charitable Society,
vs. M/s Ponniamman Educational Trust,
(2012) 8 SCC 706, the Hon'ble Supreme
Court has held that for deciding an
application under Order VII Rule 11 C.P.C.,
the averments in the plaint are germane. The
pleas taken by the defendant in the written
statement are wholly irrelevant at that stage.
It is also settled in law that plaint has to be
read as a whole and not in piecemeal.

28. It is relevant to reproduce
paragraphs 10, 11 and 12 of the Church of
Christ Charitable Trust and Educational
Charitable Society(supra), as under:-

10. Since the appellant herein, as
the first defendant before the trial Judge,
filed application under Order VII Rule 11
of the Code for rejection of the plaint on
the ground that it does not show any cause
of action against him, at the foremost, it is
useful to refer the relevant provision: Order
VII Rule 11 of the Code:

"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 returned
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 provision 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 stamppaper, 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." 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 fail 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 VII Rule 11
of the Code can be exercised at any stage of
262 INDIAN LAW REPORTS ALLAHABAD SERIES
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 & Ors. v.
State of Maharashra, (2003) 1 SCC 557, in
which, while considering Order VII Rule
11 of the Code, it was held as under: (SCC
p.560, para 9)

"9. A perusal of Order VII 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 VII 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 VII
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 VII 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 VII 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
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. These principles have been
reiterated in Raptakos Brett & Co. Ltd. vs.
Ganesh Property, (1998) 7 SCC 184 and
Mayar (H.K.) Ltd. and Others vs. Owners
& Parties, Vessel M.V. Fortune Express and
Others (2006) 3 SCC 100.

12. It is also useful to refer the
judgment
in
T.
Arivandandam
vs.
T.V.Satyapal &

Anr, (1977) 4 SCC 467, wherein
while considering the very same provision,
i.e. Order VII Rule 11 and the duty of the
trial Court in considering such application,
this Court has reminded the trial Judges
with the following observation:

"5. ..........The learned Munsif must
remember that if on a meaningful - for 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 VII, Rule 11
C.P.C. 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
X, C.P.C. 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 VII Rule
11. If clever drafting has created the
illusion of a cause of action as observed by
Krishna Iyer J., in the above referred
decision, it should be nipped in the bud at
the first hearing by examining the parties
under Order X of the Code."
9 All. Braj Bhooshan Mittal Vs. Jeet Singh
263

29. In Kuldeep Singh Pathania vs.
Bikram Singh Jaryal, (2017) 5 SCC 345,
the Honble Supreme Court held that the
scope of the enquiry at the stage of Order
VII rule 11 CPC is limited only to the
pleadings of the plaintiff. Neither the
written statement nor the averments, if any,
filed by the opposite party for rejection
under Order VII rule 11 C.P.C. or any other
pleadings of the respondents can be
considered for that purpose. It is relevant to
reproduce paragraphs 7, 8, 9 and 10 of the
report as under:-

"7. The whole purpose of trial on
preliminary issue is to save time and
money. Though it is not a mini trial, the
court can and has to look into the entire
pleadings and the materials available on
record, to the extent not in dispute. But that
is not the situation as far as the enquiry
under Order VII Rule 11 is concerned. That
is only on institutional defects. The court
can only see whether the plaint, or rather
the pleadings of the plaintiff, constitute a
cause of action. Pleadings in the sense
where, even after the stage of written
statement, if there is a replication filed, in a
given situation the same also can be looked
into to see whether there is any admission
on the part of the plaintiff. In other words,
under Order VII Rule 11, the court has to
take a decision looking at the pleadings of
the plaintiff only and not on the rebuttal
made by the defendant or any other
materials produced by the defendant.

8. It appears, the High Court
committed a mistake in the present case,
since four out of the six issues settled were
taken as the preliminary issues. Two such
issues actually are relatable only to Order
VII Rule 11 of the Code, in the sense those
issues pertained to the rejection at the
institution stage for lack of material facts
and for not disclosing a cause of action.
Merely because it is a trial on preliminary
issues at the stage of Order XIV, the scope
does not change or expand. The stage at
which such an enquiry is undertaken by the
court makes no difference since an enquiry
under Order VII Rule 11(a) of the Code can
be taken up at any stage.

9. Thus, for an enquiry under
Order VII Rule 11 (a), only the pleadings of
the plaintiff-petitioner can be looked into
even if it is at the stage of trial of
preliminary issues under Order XIV Rule
2(2). But the entire pleadings on both sides
can be looked into under Order XIV Rule
2(2) to see whether the court has
jurisdiction and whether there is a bar for
entertaining the suit.

10. In the present case, the issue
relates to an enquiry under Order VII Rule
11(a) of the Code, and hence, there is no
question of a preliminary issue being tried
under Order XIV Rule 2(2) of the Code.
The court exercised its jurisdiction only
under Section 83(1) (a) of the Act read with
Order VII Rule 11(a) of the Code. Since the
scope of the enquiry at that stage has to be
limited only to the pleadings of the plaintiff,
neither the written statement nor the
averments, if any, filed by the opposite
party for rejection under Order VII Rule
11(a) of the Code or any other pleadings of
the respondents can be considered for that
purpose.

30. In Madanuri Sri Ram Chanda
Murthy vs. Syed Jalal, (2017) 13 SCC
174, the Hon'ble Supreme Court held that
the relevant facts which need to be looked
into for deciding the application for
rejection of plaint are the averments of the
plaint only. The averments in the written
statement as well as the contentions of the
defendant are wholly immaterial. Even
when the allegations made in the plaint are
taken to be correct as a whole on their face
264 INDIAN LAW REPORTS ALLAHABAD SERIES
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 VII
Rule 11 C.P.C. can be exercised. It is
relevant to reproduce paragraph 7 of the
judgment in Madanuri case (supra), as
under:-

"7. The plaint can be rejected
under Order VII Rule 11 if conditions
enumerated in the said provision are
fulfilled. It is needless to observe that the
power under Order VII 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 VII Rule 11,
CPC. Since the power conferred on the
Court to terminate civil action at the
threshold
is
drastic,
the
conditions
enumerated under Order VII Rule 11 of
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 VII
Rule 11 of 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.

31. The same principle has been reaffirmed in Chhotanben & another v/s
Kiritbhai Jalkrushnabhai Thakkar &
Others, (2018) 6 SCC 422, and in
Madiraju Venkata Ramana Raju v/s
Peddireddigari Ramachandra Reddy &
Others, (2018) 14 SCC 1.

32. Thus, it is settled in law that the
plaint can be rejected under Order VII Rule
11 C.P.C. on the grounds under Clauses (a)
to (f). In considering the question of
rejection of the plaint, the Court has to look
into the plaint and plaint alone. The plaint
has to be read in its entirety. On the
averments made in the plaint which are to
be taken as correct as a whole on their face
value, if the suit appears to be barred by
any law, then the plaint will be rejected
under Order VII Rule 11(d) C.P.C.

32. This Court has, therefore, to
consider if from reading of the entire plaint
statement, what is the date fixed for
performance of the contract, and if no date
is fixed for performance, as to when the
plaintiff-appellant had notice that the
performance had been refused. Thereafter it
is to be considered if the suit filed was
within 3 years from the relevant date under
first or the second part of Article 54 of the
Limitation Act.

33. The plaint statements clearly show
that (i) no date was fixed for performance
of contract, (ii) the plaintiff-appellant had
9 All. Braj Bhooshan Mittal Vs. Jeet Singh
265
sent a notice dated 31.12.1993 through
registered post as well as Under Postal
Certificate(UPC)
to
the
defendantrespondent for execution /registration of the
sale deed, (iii) the UPC was received by the
defendant-respondent, (iv) by the said
notice the plaintiff-appellant had fixed
28.1.1994
requiring
the
defendantrespondent to appear in the office of the
Sub
Registrar,
Meerut,
for
execution/registration of the sale deed, and
(v) on the date fixed i.e. 28.1.1994, the
defendant-respondent did not appear for
performance
although
the
plaintiffappellant remained present with balance of
the sale consideration.

34. As no date was fixed for the
performance of the contract, the first part of
Article 54 of the Limitation Act would not
apply. The limitation period of 3 years would,
therefore, start running from the date the
plaintiff-appellant had notice of refusal of
performance by the defendant-respondent.

35. The performance of contract was
refused by the defendant-respondent on
28.1.1994 as he did not appear for
execution of the sale deed before the Sub
Registrar, Meerut on that date in pursuance
of the notice dated 31.12.1993 sent by the
plaintiff-appellant.
As
the
plaintiffappellant was present on 28.1.1994 in the
office of the Sub Registrar, Meerut for
getting the execution of the sale deed, after
making payment of balance of the sale
consideration to the defendant-respondent,
the plaintiff-appellant actually knew that
the performance was refused by the
defendant-respondent on 28.1.1994 itself.
He, as such had the notice of refusal of
performance on 28.1.1994.

36. In view of the above, the period of
limitation of 3 years to institute the suit for
specific performance of contract, started to
run from 28.1.1994 and came to an end on
27.1.1997. The suit filed in the year 2001
was, thus, clearly barred by law of
limitation on the averments made in the
plaint itself under Order VII Rule 11(d)
C.P.C.

37. The next submission of the
learned counsel for the appellant is that as
per the plaint averments, on the next date
i.e. on 29.1.1994, the defendant-respondent
approached the plaintiff-appellant with
excuses and assured that the sale deed
would be executed at the earliest after
getting requisite permission from the
Ceiling Department and the Income-tax
Department. Relying on the said assurances
of the defendant-respondent, the plaintiffappellant did not institute the suit and
waited
for
the
performance
by
the
defendant-respondent.