# Rajesh Kumar v. Rakesh Kumar Sharma & Ors

- **Citation:** (2026) 3 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-25
- **Case number:** First Appeal No. 44 of 2026
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-rakesh-kumar-sharma-ors-54814
- **Pages:** 17

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3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
921

13. Accordingly, the present bail application is rejected.
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(2026) 3 ILRA 921
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 44 of 2026

Rajesh Kumar ...Appellant
Versus
Rakesh Kumar Sharma & Ors. ...Respondents

Issues for Consideration
(i) Whether, while deciding an application under Order VII Rule 11 CPC, the Court can consider the defence
taken by the defendant and the documents filed by him, or whether its scrutiny is confined only to the
averments contained in the plaint and the documents filed by the plaintiff?
(ii) Whether a suit seeking declaration that a Will is void, where the plaintiff pleads knowledge of the Will on a
particular date and institutes the suit within three years thereof, can be rejected at the threshold as barred by
limitation under Order VII Rule 11(d) CPC?
(iii) Whether alleged admissions contained in an objection filed to an application under Order VII Rule 11 CPC
can be relied upon for rejecting the plaint on the principles underlying Order VIII Rule 5 CPC or Order XII Rule
6 CPC?

Headnotes
Code of Civil Procedure, 1908 - O. VII r.11 - Rejection of plaint - Scope of enquiry -
Consideration of defence and documents filed by defendant - Permissibility:

Held: While deciding an application under Order VII Rule 11 CPC, the Court is required to confine itself to the
averments made in the plaint and the documents filed by the plaintiff. The written statement, defence set up
by the defendant, application filed by the defendant and documents relied upon by him are wholly irrelevant
for deciding whether the plaint is liable to be rejected. Even where issues have already been framed, the
scope of enquiry under Order VII Rule 11 CPC does not expand and remains confined to the plaintiff's
pleadings. The trial court, therefore, committed a manifest error in relying upon the defendant's application
and documents for rejecting the plaint. [Paras 22-24, 31, 33, 38]

Code of Civil Procedure, 1908 - O. VII r.11(d) - Limitation Act, 1963 - Art. 59 - Suit seeking
declaration that Will is void - Date of knowledge pleaded in plaint - Limitation as mixed
question of law and fact - No Rejection of plaint at threshold:

Held: Where the plaintiff specifically pleads that knowledge of the impugned Will was acquired only on a
particular date and that the suit was instituted within three years therefrom, the question of limitation
becomes a mixed question of law and fact. At the stage of Order VII Rule 11 CPC, the Court must proceed on
the basis that the averments contained in the plaint are correct and cannot test their veracity. Unless the
plaint itself unequivocally discloses that the suit is barred by limitation, the plaint cannot be rejected under
Order VII Rule 11(d) CPC. The issue regarding the correctness of the pleaded date of knowledge is a triable
issue requiring evidence and cannot be adjudicated summarily at the threshold. [Paras 25-29, 34, 40]
922 INDIAN LAW REPORTS ALLAHABAD SERIES
Code of Civil Procedure, 1908 - O. VII r.11 - O. XIV r.2 - Issue regarding rejection of plaint
framed by trial court - No oral evidence recorded - Decision on limitation solely on defendant's
material - Legality:

Held: The trial court had framed issues including the issue whether the suit was barred by limitation and
whether the plaint was liable to be rejected under Order VII Rule 11 CPC. No oral evidence had been adduced
by either party. In such circumstances, the issue relating to rejection of plaint could be decided only on the
basis of the plaint and documents filed by the plaintiff. Reliance upon materials produced by the defendant for
deciding the issue at that stage was legally impermissible and rendered the order unsustainable. [Paras 30-34]

Code of Civil Procedure, 1908 - O. VIII rr.3, 4 and 5 - O. XII r.6 - Alleged admission in
objection to application under O. VII r.11 CPC - Effect:

Held: An objection filed by the plaintiff in response to an application under Order VII Rule 11 CPC does not
fall within the category of pleadings so as to attract the principles governing specific denial under Order VIII
Rules 3, 4 and 5 CPC. Where the plaintiff specifically denied knowledge of the impugned Will and asserted
that the Will was forged and fabricated, there was no admission capable of being acted upon under Order XII
Rule 6 CPC. The contention that a vague denial amounted to admission of knowledge of the Will since 1998
was misconceived and rightly rejected. [Paras 36-39]

Family Arrangement - Memorandum recording prior oral family settlement - Declaration of
rights under family settlement - Limitation:

Held: The plaintiff pleaded that an oral family settlement had taken place during the lifetime of the father and
was subsequently reduced into writing by a memorandum dated 25.04.2006 which had been acted upon by
the family members. The claim for declaration regarding legality and enforceability of such family arrangement
could not be rejected merely because the challenge to the Will was alleged to be time-barred. The plaintiff
was entitled to seek adjudication of his asserted rights in the disputed properties on the basis of the pleaded
family settlement. [Para 35]

Appeal allowed - Judgment and decree rejecting plaint set aside - Suit restored - Application
under Order VII Rule 11 CPC dismissed. (E-14)

Case Law Cited
Vinod Infra Developers Ltd. v. Mahaveer Lunia and Others, 2025 INSC 772 - relied on; Keshav
Sood v. Kirti Pradeep Sood and Others, 2023 SCC OnLine SC 2459 - relied on; Sri Biswanath
Banik and Another v. Sulanga Bose and Others, (2022) 7 SCC 731 - relied on; Daliben Valjibhai
and Others v. Prajapati Kodarbhai Kachrabhai and Another, 2024 SCC OnLine SC 4105 - relied
on; P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331 - relied on; Chhotanben v.
Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 - relied on; Salim D. Agboatwala v.
Shamalji Oddhavji Thakkar, (2021) 17 SCC 100 - relied on; P. Kumarakurubaran v. P. Narayanan
and Others, 2025 SCC OnLine SC 975 - relied on; Kuldeep Singh Pathania v. Bikram Singh
Jaryal, (2017) 5 SCC 345 - relied on; Badat & Co., Bombay v. East India Trading Co., AIR 1964
SC 538 - distinguished; Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 -
distinguished.

List of Acts / Statutes
Code of Civil Procedure, 1908; Limitation Act, 1963.

List of Keywords
Rejection of plaint; Limitation; Date of knowledge; Will; Cancellation of Will; Declaration; Family settlement;
Memorandum of family arrangement; Mixed question of law and fact; Admission; Triable issue; Scope of
enquiry.
3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
923
Case Arising From
Judgment and decree dated 15.11.2025 passed by the Court of Civil Judge (Senior Division)/FTC, Bulandshahr
in O.S. No. 863 of 2020, Rajesh Kumar v. Rakesh Kumar and Others.

Appearance for Parties
For Appellant: Sri Mohit Kumar Shukla, Sri Tarun Agrawal, Senior Advocate
For Respondent: Sri Anjul Dwivedi, Sri Mohit Kumar, Sri Sai Girdhar, Sri Sanjay Agrawal and Ms.
Vandana Mishra.

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal has been filed by the plaintiff under Section 96 CPC against the
impugned judgment and decree dated 15.11.2025 passed by the court of Civil Judge(Senior
Division)/FTC, Bulandshahr in O.S. No. 863 of 2020 Rajesh Kumar vs. Rakesh Kumar and others
whereby defendant no.1's application no.125-C2 under Order VII Rule 11 CPC was allowed and
consequently, the plaint was rejected.

Plaint case

2. Factual matrix is that the plaintiff/appellant filed O.S.no. 863 of 2020 against defendant of
the 1st part Rakesh Kumar Sharma(defendant no.1) and defendants of the 2nd part Dinesh Kumar
Sharma,Mukesh Kumar Sharma,Naresh Kumar Sharma and Urmi Sharma(defendants no.2 to 6)
with the averments that the plaintiff and defendants are real brothers and sister, the defendants of
the 2nd part are formal parties, against whom no relief has been claimed. It was further averred that
the instant suit has been filed seeking declaration of Will dated 17.8.1998 and family settlement
dated 25.4.2006.

3. It was further averred that the plaintiff 's mother Late Kamal Rani Sharma wife of Late
Ramkrishan Sharma from her personal ornaments, stridhan, etc., purchased disputed property no.1
through sale deed dated 16.10.1962 and the disputed property no. 2 was purchased by the funds
provided by plaintiff, plaintiffs father Late Ramkrishan Sharma and defendant of the 1st part, in the
name of plaintiffs and defendant of the 1st part 's maternal uncle Durga Prasad through sale deed
on 9.11.1967. It was further averred that plaintiffs father Ramkrishan Sharma died on 2.12.2005
and plaintiffs mother Late Kamal Rani Sharma died on 17.9.1991.

4. It was further averred that in the year 1971 late Ramkrishan Sharma and defendant of 1st
part jointly constituted a firm for conducting the business of Vishal cinema and for this the
defendant of the 1st part and plaintiffs maternal uncle Durga Prasad transferred the disputed
property no. 2 and the plot of land towards east of this property measuring 245 square yard to firm
Vishal Enterprises on 21.9.1976 and thereafter, the plaintiff, plaintiffs father Ramkrishan Sharma,
defendant of the 1st part Rakesh Kumar Sharma and defendant no. 3 Mukesh Kumar Sharma
became its partners. It was further averred that on 17.12.1976 the sale deed of the above vacant plot
measuring 245 square yard was executed by the firm in favour of defendant no.2 Dinesh Kumar
Sharma, of which he is the sole owner in possession.
924 INDIAN LAW REPORTS ALLAHABAD SERIES

5. It was further averred that late Ramkrishan Sharma for managing the entire property of the
family made a oral family settlement on 31.12.2003 in the presence of plaintiff, defendants and
their relatives, which was made with the consent of all, so as to avoid any dispute in future. The
above oral family settlement was reduced into writing as a memorandum in the presence of
relatives on 25.4.2006, according to which the half portion of disputed property no.1 towards South
was given to plaintiff and the remaining half portion towards North was given to defendant no.3
Mukesh Kumar Sharma and similarly, in disputed property no. 2 Dinesh Kumar Sharma and
Rakesh Kumar Sharma became owners in possession of 1/2 1/2 portion. It was further averred
that the above family settlement was acted upon and in accordance with it, the respective parties are
in possession of their respective shares as owners.

6. It was further averred that 5 6 years after the death of Ramkrishan Sharma, the intention
of defendant of the 1st part became malafide, who intended to usurp the disputed property no.1 and
2, who began to assert his ownership in the above property, in respect of more share than he was
entitled to. It was further averred that the defendant of the 1st part disclosed to the plaintiff for the
1st time on 7.10.2020 that in the year 1998 a Will was executed by Ramkrishan Sharma in his
favour, who rejected the ownership of plaintiff, to which the plaintiff was surprised. The plaintiff
got inspected the records of the registrar office, Bulandshahr and applied for the certified copy of
the alleged Will dated 17.8.1998, which was obtained on 13.10.2020, then the plaintiff became
aware of all the facts regarding the above Will.

7. It was further averred by the plaintiff that the above Will of Ramkrishan Sharma dated
17.8.1998 was a forged and void document because Late Ramkrishan Sharma during his lifetime,
never discriminated between his sons, but the Will was discriminatory, in which illegally plaintiff
and defendants Mukesh and Naresh were excluded. It was further averred that Late Ramkrishan
Sharma himself on 20.9.1997 partitioned the family property among all the heirs and subsequently,
on 31.12.2003 again an oral family arrangement was made in which all his legal heirs were given
equal rights in the property. It was further averred that the above alleged Will was a benami
transaction in which wrongly in the annexed map, the eastern part of property no.1 was shown to be
included in property no. 2 and also the plot of defendant Dinesh Kumar Sharma, was not shown in
the map. It was further averred that the map annexed with the alleged Will was against the actual
ground situation. It was further averred that in the alleged Will wrong reason was assigned by
Ramkrishan Sharma to exclude plaintiff and defendants Mukesh Kumar Sharma and Dinesh Kumar
Sharma from the property. It was further averred that the alleged Will was disclosed after about 15
years, which was never acted upon, which itself makes it suspicious. It was further averred that
Late Ramkrishan Sharma was not the owner of the property disclosed in the alleged Will, he was
only the head of the family, who had no right to execute the Will regarding the family property. It
was further averred that at the time of the alleged execution of the above Will, Late Ramkrishan
Sharma, was very old and infirm, whose mental capacity was very weak, as such, he could not have
executed the alleged Will. It was further averred that from the year 1998 till the year 2005,
Ramkrishan Sharma never disclosed to the family about the alleged Will, which also makes it
suspicious. It was further averred that the defendant of the 1st part, being an advocate,by taking
advantage of the weak mental condition of Ramkrishan Sharma has managed to prepare a
fraudulent Will, which was rather in the nature of a family settlement, regarding which the consent
of legal heirs was not taken.
3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
925

8. It was further averred that the alleged Will dated 17.8.1998 was a forged, fabricated and
void document, which was prepared by the defendant of the 1st part in order to usurp the disputed
property. It was further averred that the memorandum of oral family settlement dated 25.4.2006
was a valid and legal document regarding which declaration needs to be claimed from the court. It
was further averred that the suit has been filed within limitation from the date of knowledge of the
alleged Will. In the above backdrop, the plaintiff claimed the following reliefs from the court :-

(i) By a declaratory decree passed in favour of the plaintiff against the defendant of the
1st part, the alleged Will dated 17.8.1998, which is registered in the office of registrar
Bulandshahr be declared void and ineffective document and its information be sent to the
concerned registrar.

(ii) By decree of declaration made in favour of plaintiff, it be declared that regarding the
disputed property the oral family memorandum dated 25.4.2006 is valid and effective document,
which is binding on the parties.

Defendant's application under Order VII Rule 11 CPC

9. During the pendency of the suit the defendant of the 1st part Rakesh Kumar Sharma moved
an application no.125-C2 under Order VII Rule 11 CPC with the averments that the instant suit has
been filed for cancellation of the Will and for declaring valid the alleged family settlement, which
has been insufficiently valued, on which advalorem court fees is to be paid, which is to be
determined in the issue that has been framed regarding its valuation, as such without paying the
appropriate court fees the suit is barred under Order VII Rule 11(c) CPC. It was further averred that
the plaintiff has got no cause of action, since the property no. 2 is a cinema hall, the ownership of
which lies with Rakesh Kumar Sharma and Durga Prasad . It was further averred that Durga Prasad
in his statement to the court, had stated himself to be the benami, the real owner being Ramkrishan
Sharma, whereas in the alleged Will, Rakesh Kumar Sharma was disclosed to be its owner, as such,
regarding this property the plaintiff has got no right to sue. It was further averred that in the plaint,
the plaintiff has disclosed that the above cinema was constructed with the assistance of plaintiff,
plaintiffs father Ramkrishan Sharma and defendant of the 1st part Rakesh Kumar Sharma, but no
evidence has been led regarding this fact. From the papers filed by the plaintiff, it was proved that
Rakesh Kumar Sharma was the owner in possession of the above property.

10. It was further averred that the alleged family settlement was neither registered nor duly
stamped, as such,it was inadmissible in evidence ,which has also not been signed by all the
members of the family, which has also not been acted upon till date, because as per the settlement it
was agreed that every son(brother) shall give an amount of ₹ 7.50 lakh to his sister Urmila Sharma,
which was never paid, which does not bear the signature of Rakesh Kumar Sharma and Urmila,
which was time barred since the limitation for seeking its declaration was only 3 years.

11. It was further averred that the Will was dated 17.8.1998, a copy of which was sent to the
plaintiff by Ramkrishan Sharma through registered post, which was also published in the
newspaper, letters were written to the defendant Rakesh Kumar Sharma in this regard, a reply was
also submitted by the plaintiff through his counsel Sheel Kumar Garg,the documentary evidence of
which has been filed by the defendant in the suit, which proves that the plaintiff was aware of the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
alleged Will since the year 1998, and for getting cancelled any document the limitation under
Article 59 was only 3 years, as such, the relief of cancellation of the alleged Will was time barred,
due to which the plaintiff 's suit was not legally maintainable. With these averments, it was prayed
that the suit be rejected.

Plaintiffs objection to the above application under Order VII Rule 11 CPC

12. The plaintiff filed his objection paper no.126-C2 in the trial court in which it was averred
that the issue of court fees was yet to be decided by the court. It was further averred that only after
evidence of plaintiff ,the facts alleged by the defendant could be decided. It was further averred that
the issue of limitation was a mixed question of law and fact, which can only be decided after
evidence of the parties. It was specifically denied by the plaintiff that he ever received any notice
regarding the alleged Will, which was a concocted story set up by the defendant, which can only be
proved after evidence of the parties. It was further averred that since the alleged Will was not in the
knowledge of the plaintiff as such, the suit for the cancellation of the alleged Will has been filed
within a period of 3 years from the date of its knowledge, which was well within the prescribed
period of limitation. It was further averred that the application has only been filed by the defendant
in order to delay the disposal of the suit, which was not legally maintainable, which was liable to be
dismissed with costs of at least ₹ 20,000/-, so that the defendant may not be able to delay the
disposal of the suit on one pretext or the other.

Conclusion of the trial court

13. The trial court considered that since on the basis of pleadings of the parties issues in the
suit have already been framed on 19.7.2022, and issue no. 7 related to whether the suit of the
plaintiff was barred under Order VII Rule 11 CPC, as such it was appropriate to examine the
evidence on record.

14. The trial court considered that since the original Will dated 17.8.1998 was available on
record, regarding which a registered notice was sent to the plaintiff on 5.9.1998, a photo copy of
the postal receipt was filed on record by the defendant, a reply to that notice was submitted by
plaintiff through his counsel on 6.10.1998, which was not denied by the plaintiff in his objection,
which duly proved that the plaintiff was aware of the alleged Will dated 17.8.1998 after the receipt
of the notice dated 5.9.1998, but inspite of the knowledge of the above Will, a suit was not filed
seeking its cancellation, whereas, the limitation for filing a suit for getting declared a document
void was 3 years from the date of its knowledge. The trial court opined that since the suit was filed
by the plaintiff on 7.12.2020, whereas, the plaintiff became aware of the alleged Will on 6.10.1998,
as such, the suit was filed 19 years after the expiry of the prescribed period of limitation. On this
reasoning, the trial court concluded that the suit seeking relief of cancellation of the alleged Will
dated 17.8.1998 was barred by limitation.

15. It was further concluded by the trial court that since the primary relief was sought
regarding the cancellation of the alleged Will, which was barred by limitation, as such, the ancillary
relief seeking declaration of the memorandum of family settlement was also time barred. In view of
the above reasoning, issue no. 7 was decided against the plaintiff,in favour of defendant and
3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
927
consequently, the defendant's application under Order VII Rule 11 CPC was allowed, whereby the
suit was dismissed, aggrieved against which, the plaintiff has filed the instant appeal under Section
96 CPC.

Submissions of the learned counsel of the parties

16. Sri Tarun Agarwal learned Senior Counsel for the plaintiff appellant submitted that it is
well settled that an application Order VII Rule 11 CPC is to be decided only on the basis of plaint
averments and documents submitted by the plaintiff, and for its disposal, the written statement and
the documents submitted by the defendants cannot be considered by the court, but in the instant
case, the trial court has relied upon the documents submitted by the contesting defendant, which
were denied by the plaintiff, which were never proved in accordance with law. Learned counsel
further submitted that at no stage there was any admission by the plaintiff that he was aware of the
alleged Will in the year 1998, as such, the trial court has erred in presuming that the plaintiff has
admitted that it had knowledge of the Will wayback in the year 1998. It was further submitted that
a categorical denial about the knowledge of the Will was made in the objection submitted by the
plaintiff to the defendants Order VII Rule 11 CPC application, but still, the trial court has presumed
that denial to be an admission on the part of the plaintiff, which is a perverse finding, which is
legally unsustainable.

17. It was further submitted that although on the basis of pleadings of the parties, issues were
framed by the trial court on 19.7.2022, but no evidence was led by either of the parties, as such, no
evidence was available to decide the issue of limitation. Learned counsel further submitted that
since no oral evidence was led by the parties as such, the trial court could not have decided the
issue of limitation, which was a mixed question of law and fact. Learned counsel further submitted
that the trial court has only decided the issue as to whether the suit was barred under Order VII
Rule 11 CPC , which can only be decided on the basis of plaint averments and the documents
submitted by the plaintiff.

18. Learned counsel further submitted that the trial court has made a fundamental error in
considering the documentary evidence of the defendant for deciding the issue, whereas, it could not
have been legally considered, since, the parties had not led any oral evidence till that stage. Learned
counsel further submitted that had the trial court considered the oral and documentary evidence of
the parties and thereafter, decided the issue of limitation, then the position would have been
different, but in this case, no such course was adopted by the trial court. It was further submitted
that on the basis of plaint averments, it was proved that the plaintiff only became aware of the
alleged Will on 07.10.2020, and after obtaining its certified copy, the suit for its cancellation has
been filed on 7.12.2020, which is well within the prescribed period of limitation from the date of its
knowledge. Learned counsel further submitted that the contesting defendant will get opportunity to
adduce contrary evidence, and after considering the oral and documentary evidence on record,
certainly the issue of limitation can be decided against the plaintiff. With these submissions, it was
prayed that the appeal be admitted for hearing, allowed and the defendant's application under Order
VII Rule 11 CPC be rejected. In support of his submission, the learned counsel has relied upon the
case law of Kuldeep Singh Pathania vs. Bikram Singh Jaryal (2017) 5 SCC 345.
928 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Per contra, learned counsel for the contesting defendant/respondent Rakesh Kumar Sharma
submitted that a vague denial about the knowledge of the alleged Will was made by the plaintiff in
his objection paper no.126-C2, whereas a specific denial should have been made to the defendants
application under Order VII Rule 11 CPC, which amounts to an admission that the plaintiff had
knowledge of the Will since the year 1998, as such, the trial court has not erred in dismissing the
plaintiff 's suit being barred by limitation. Learned counsel in support of his submissions has relied
on the following case law :

(i)Badat & Co. Bombay vs. East India Trading Co. 1964 AIR SC 538 (By 3 Judges).

(ii)Karam Kapahi and others vs.M/S Lal Chand Public Charitable Trust & Another
(2010) 4 SCC 753.

20. I have heard the learned counsel of the parties, perused the impugned order and documents
submitted with the appeal. Appeal is admitted.

21. On the basis of the submissions of the learned counsel of the parties, the following
questions arise for determination in this appeal :-

(i)Whether the trial court erred in considering the objection and documents of the
contesting defendant, for deciding the application under Order VII Rule 11 CPC ?

(ii)Whether in the absence of oral evidence on record, the issue of limitation, being mixed
question of law and fact, could have been decided by the trial court at the threshold under Order
VII Rule 11 CPC ?

(iii)Whether the provisions of Order VIII Rule 5 CPC are applicable on the objection
paper no. 126-C2 submitted by the plaintiff to the defendants application under Order VII Rule 11
CPC?

Conclusion of this Court

22. The Apex Court in the case of Vinod Infra Developers Ltd. vs. Mahaveer Lunia and
others 2025 INSC 772 has held that at the preliminary stage of deciding Order VII Rule 11 CPC
application, the court is required to confine its examination strictly to the averments made in the
plaint and not venture into the merits or veracity of the claims. If any triable issues arise from the
pleadings, the suit cannot be summarily rejected.

23. The Apex Court in the case of Keshav Sood vs. Kirti Pradeep Sood and others 2023 SCC
OnLine SC 2459 has held that the scope of Rule 11 of Order VII of CPC is concerned, the law is
well settled. The court can look into only the averments made in the plaint and at the highest,
documents produced along with the plaint. The defence of defendant and documents relied upon by
him cannot be looked into while deciding such application.

24. It is apparent from the above law laid down by the Apex Court in the case of Vinod Infra
(supra) and Keshav Sood (supra) that at the time of deciding Order VII Rule 11 CPC application,
the court has to look into only the averments made in the plaint and the documents submitted by the
plaintiff. The court has not to examine the written statement of the defendant or the documents
3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
929
submitted by it. Further, the court has also not to examine the plaintiffs case on merit to determine
whether he is going to succeed or not ? It is also apparent that if any triable issue arises out of the
pleadings of the plaintiff, then the plaint cannot be summarily rejected.

25. The Apex Court in the case of Sri Biswanath Banik and another vs. Sulanga Bose and
others (2022)7 SCC 731, while discussing the issue of suit being barred by limitation under Order
VII Rule 11 CPC, held as under:-

"7. Now, so far as the issue whether the suit can be said to be barred by limitation or not,
at this stage, what is required to be considered is the averments in the plaint. Only in a case where
on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be
rejected under Order 7 Rule 11(d)CPC on the ground of limitation. At this stage what is required to
be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider
and read the averments in the plaint as a whole. As observed and held by this Court in Ram Prakash
Gupta (2007) 10 SCC 59 , rejection of a plaint under Order 7 Rule 11(d)CPC by reading only few
lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said
decision, in para 21, it is observed and held as under: (SCC p. 68)

"21. As observed earlier, before passing an order in an application filed for rejection of
the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The
abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the
knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v.
Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he
took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is
not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed
within a period of three years from the date of the knowledge. The knowledge mentioned in the
plaint cannot be termed as inadequate and incomplete as observed [Ram Prakash Gupta v. Rajiv
Kumar Gupta, 2006 SCC OnLine Del 488] by the High Court. While deciding the application
under Order 7 Rule 11, few lines or passages should not be read in isolation and the pleadings have
to be read as a whole to ascertain its true import. We are of the view that both the trial court as well
as the High Court failed to advert to the relevant averments as stated in the plaint.''

7.1. From the aforesaid decision and even otherwise as held by this Court in a catena of
decisions, while considering an application under Order 7 Rule 11CPC, the Court has to go through
the entire plaint averments and cannot reject the plaint by reading only few lines/passages and
ignoring the other relevant parts of the plaint.

26. The Apex Court in the case of Daliben Valjibhai & Ors. vs. Prajapati Kodarbhai
Kachrabhai & Anr. 2024 SCC OnLine SC 4105, while discussing whether the period of limitation
is to be calculated from the date of knowledge of the sale deed, regarding which cancellation of suit
was filed, held as under:-

"11. This Court had to deal with a similar situation in P.V. Guru Raj Reddy v. P.
Neeradha Reddy (2015) 8 SCC 331. A suit instituted by the plaintiff in the year 2002 for
cancellation of sale deed of year 1979 on the ground that the knowledge of fraud was acquired only
in 1999, was objected to by the defendant in an application under Order 7 Rule 11 on the ground
that it is barred by limitation. This Court held:
930 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in
the court to terminate a civil action at the threshold. The conditions precedent to the exercise of
power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by
the Court. It is the averments in the plaint that have to be read as a whole to find out whether it
discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of
power under Order 7 Rule 11, the stand of the defendants in the written statement or in the
application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint
ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred
under any law the plaint can be rejected. In all other situations, the claims will have to be
adjudicated in the course of the trial.

6. In the present case, reading the plaint as a whole and proceeding on the basis that the
averments made therein are correct, which is what the Court is required to do, it cannot be said
that the said pleadings ex facie disclose that the suit is barred by limitation or is barred under any
other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential
facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage
of consideration of the application under Order 7 Rule 11 the stand of the defendants in the written
statement would be altogether irrelevant."

12. Further, in Chhotanben v. Kirtibhai Jalkrushnabhai Thakkar(2018) 6SCC 422 where
again a suit for cancellation of sale deed was opposed through an application under Order 7 Rule
11, on ground of limitation, this Court specifically held that limitation in all such cases will arise
from date of knowledge. The relevant portion is as follows:

"15. What is relevant for answering the matter in issue in the context of the application
under Order 7 Rule 11(d) CPC, 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 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the
registered sale deed is dated 18-10-1996. 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 appellant-plaintiffs is that until 2013 they had no knowledge whatsoever
regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of
Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to 6. They acquired that knowledge on 26-122012 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
Defendants 1 and 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 realised that the original Defendants 1 and 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 1-Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view
commends to us.
...
3 All. Rajesh Kumar Vs. Rakesh Kumar Sharma & Ors.
931

19. In the present case, we find that the appellant-plaintiffs have asserted that the suit
was filed immediately after getting knowledge about the fraudulent sale deed executed by original
Defendants 1 and 2 by keeping them in the dark about such execution and within two days from the
refusal by the original Defendants 1 and 2 to refrain from obstructing the peaceful enjoyment of
use and possession of the ancestral property of the appellants. We affirm the view taken by the trial
court that the issue regarding the suit being barred by limitation in the facts of the present case, is
a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the
power under Order 7 Rule 11(d) CPC."

27. The Apex Court in the case of Salim D.Agboatwala & Others vs. Shamalji Oddhavji
Thakkar & Others (2021) 17 SCC 100 while discussing rejection of plaint on the ground of bar of
limitation under Order VII Rule 11 CPC, 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 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.

9. The above averments may or may not be true. But if the plaintiffs succeed in
establishing the above averments, the issue of limitation cannot be put against the plaintiffs.
Generally a party, who never had any notice of a particular proceeding before a quasi-judicial
authority, is entitled to approach the court upon gaining knowledge of the proceedings. Limitation
cannot be put against such a party.

10.*****

11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy [(2015) 8
SCC 331 : (2015) 4 SCC (Civ) 100] , the rejection of plaint under Order 7 Rule 11 is a drastic
power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions
precedent to the exercise of the power are stringent and it is especially so when rejection of plaint
is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the
essential facts giving rise to the cause of action only at a particular point of time, the same has to
be accepted at the stage of considering the application under Order 7 Rule 11.

12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai
Jalkrushnabhai Thakkar [(2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524] , the plea regarding the
date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the
question whether the suit is barred by limitation or not. It becomes a triable issue and hence the
suit cannot be thrown out at the threshold."

28. The Apex Court in the case of P.Kumarakurubaran vs. P.Narayanan and others 2025
SCC OnLine SC 975, while considering the issue of limitation at the threshold stage under Order 7
Rule 11 CPC, held as under:-

"12.1. However, we are of the considered view that the issue as to whether the appellant
had prior notice or reason to be aware of the transaction at an earlier point of time, or whether the
932 INDIAN LAW REPORTS ALLAHABAD SERIES
plea regarding the date of knowledge is credible, are matters that necessarily require appreciation
of evidence. At this preliminary stage, the averments made in the plaint must be taken at their face
value and assumed to be true. Once the date of knowledge is specifically pleaded and forms the
basis of the cause of action, the issue of limitation cannot be decided summarily. It becomes a
mixed question of law and fact, which cannot be adjudicated at the threshold stage under Order VII
Rule 11 CPC.