# Ram Babu Defendant/ v. Raj Bahadur & Anr

- **Citation:** (2019) 3 ILRA 748
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** Second Appeal No. 520 of 2017
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-defendant-v-raj-bahadur-anr-44945
- **Pages:** 5

## Headnote

A. Civil Law-Code of Civil Procedure, 1908
- Order 7 Rule 11 (d) CPC - Rejection of
plaint as barred by limitation - Only plaint
averments have to be seen.
Held:- Rejection of plaint under Order 7 Rule
11 (d) C.P.C is a drastic power conferred in
the court to terminate a civil action at the
threshold. While considering Order 7 Rule 11
(d) C.P.C, only plaint averments have to be
seen. It is the plaint that has 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. The stand of the defendant in the
written statement or in the application for
rejection of plaint is wholly immaterial at that
stage. Document filed by defendant at pretrial stage is not at all relevant for the purpose
of deciding, the issue regarding rejection of
plaint under Order 7 Rule 11 (d) C.P.C. (Para
19, 20)
B.
Practice
and
Procedure
-
Maintainability - Dismissal of a suit at
Pre-trial
stage
on
the
ground
of
maintainability - Court may even look
into those documents furnished by the
defendants.
Held:- For dismissal of the suit on a
preliminary issue regarding maintainability of
the suit, the court is entitled and liable to look
into all documents including those furnished
by the defendants. (Para 21)
Second Appeal dismissed (E-5)

List of Cases Cited: -
1.Central Provident Fund Commissioner, New
Delhi & ors. Vs Lala J.R. Education Society &
ors. 2012 (121) ALR.

## Text

748 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In this view of the matter, the
Second Appeal which is concluded by
findings of fact requires no interference.
The Second Appeal is, accordingly,
dismissed.
----------

(2019)11ILR A748

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

Second Appeal No. 520 of 2017

Ram Babu ...Defendant/Appellant
Versus
Raj Bahadur & Anr.
 ...Plaintiffs/Respondents

Counsel for the Appellant:
Sri Pravesh Kumar

Counsel for the Respondents:
Sri Nigamendra Shukla
A. Civil Law-Code of Civil Procedure, 1908
- Order 7 Rule 11 (d) CPC - Rejection of
plaint as barred by limitation - Only plaint
averments have to be seen.
Held:- Rejection of plaint under Order 7 Rule
11 (d) C.P.C is a drastic power conferred in
the court to terminate a civil action at the
threshold. While considering Order 7 Rule 11
(d) C.P.C, only plaint averments have to be
seen. It is the plaint that has 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. The stand of the defendant in the
written statement or in the application for
rejection of plaint is wholly immaterial at that
stage. Document filed by defendant at pretrial stage is not at all relevant for the purpose
of deciding, the issue regarding rejection of
plaint under Order 7 Rule 11 (d) C.P.C. (Para
19, 20)
B.
Practice
and
Procedure
-
Maintainability - Dismissal of a suit at
Pre-trial
stage
on
the
ground
of
maintainability - Court may even look
into those documents furnished by the
defendants.
Held:- For dismissal of the suit on a
preliminary issue regarding maintainability of
the suit, the court is entitled and liable to look
into all documents including those furnished
by the defendants. (Para 21)
Second Appeal dismissed (E-5)

List of Cases Cited: -
1.Central Provident Fund Commissioner, New
Delhi & ors. Vs Lala J.R. Education Society &
ors. 2012 (121) ALR.
2. P.V. Guru Reddy Vs Neeradha Reddy (2015)
8 SCC 331

(Delivered by Hon'ble Rajiv Joshi, J.)

1. This is defendant's second appeal
under Section
100
Code
of
Civil
Procedure against the judgment and
decree dated 28.2.2017 passed by the
additional District Judge Court No.14,
Allahabad in First Appeal No. 301 of
2013 (Raj Bahadur Vs. Rama Bai Trust
and Others) whereby the appeal was
allowed. The lower appellate court by the
impugned judgment and decree has set
aside the judgment and decree dated
4.3.2013 passed by the trial judge in
Original Suit No.722 of 2009 ( Raj
Bahadur Vs. Ramabai Trust); decided
Issue no. 7 in favour of the plaintiffs and
held that the plaint cannot be rejected
under Order 7 Rule 11 (d) of C.P.C.

2.

The
relevant
facts
for
consideration in the present appeal are
that one Smt. Latifanbai @ Rama Bai had
3 All. Ram Babu Vs. Raj Bahadur & Anr.
749
created a Trust on 7th August, 1949
namely Rama Bai Trust with regard to the
property House Nos. 49,50,51 and 52
situated at Mohalla Meerganj including
other properties situated at Alopibagh
District- Allahabad for public purposes
(Dharmsala). Since, several tenants were
residing in the aforesaid houses and the
purpose for creating the trust was not
being fulfilled, therefore, all the trustees
after the death of Smt. Latifanbai @
Rama Bai decided to sell the property and
accordingly filed an application before
the District Judge, Allahabad seeking
permission to sell the property as
mentioned above.

3. The District Judge Allahabad vide
order dated 14.5.1968 granted permission
to sell the aforesaid property belonging to
the Trust. On 21.5.1975, this Court
appointed official trustee of the aforesaid
trust who has full authority and power to
sell the aforesaid property.

4. Subsequently, a sale-deed was
executed by the Trustee in respect of
house no. 49 situated at Meerganj,
Allahabad for the sale consideration of
Rs. 70,000/-. The said sale-deed was
registered on 15.1.1985 in the office of
Sub-Registrar, Allahabad. Subsequently,
the
plaintiff-respondent no. 1 Ram
Bahadur filed original Suit No. 722 of
2009 by impleading the Rama Bai Trust
as the defendant no.1 and the appellant as
defendant no. 2 for declaration to the
effect that the sale-deed dated 12.10.1984
(registered on 15.1.1985) is null and void.

5. In the plaint, it was specifically
stated that the plaintiff-respondent had no
knowledge about the sale-deed dated
12.10.1984 registered on 15.1.1985 and
he acquired the knowledge of the same in
April, 2009 and the suit was filed on
30.5.2009.

6.

The
defendant-appellant
contested the matter and filed his written
statement on the ground that the suit is
barred by limitation as the plaintiffs had
the knowledge about the execution of the
sale-deed in question and even earlier he
had filed Original Suit No. 969 of 1996
for permanent injunction in which the
defendant-appellant was the defendant
no.2 and therefore, the plaint is liable to
be rejected under Order 7 Rule 11 (d) of
C.P.C.

7. The trial court on the basis of the
pleadings of the parties framed following
9 issues on 15.5.2012:

1& D;k okni= ds dFkukuqlkj iz'uxr
cSukek 'kwU; o fu"izHkkoh ?kksf"kr fd;s tkus ;ksX; gS \

2& D;k oknh iz'uxr lEifRr dh
lkoZtfud uhykeh djk;s tkus gsrq vkQhfl;y
VaLVht dks fgnk;r fnyokus dk mi'ke izkIr djus
dk vf/kdkjh gS \

3& D;k okn dk ewY;kadu mfpr gS \

4& D;k iznRr U;k; 'kqYd Ik;kZIr gS \

5& D;k bl U;k;ky; dks okn dh
lquokbZ dk {ks=kf/kdkj izkIr gS\

6& D;k okn /kkjk 34] 38] ,oa 41
fof'k"V vuqrks"k vf/kfu;e ds izkfo/kkuks ls ckf/kr gS
\

7& D;k oknh vkns'k & 7 fu;e & 11
lh0 ih0 lh0 ls ckf/kr gS\

8& D;k oknh miefr ,oa fucU/ku ds
fl)kUrksa ls ckf/kr gS \

9& oknh fdl mi'ke dks ikus dk
vf/kdkjh gS \

8. One of the issues i.e. Issue no. 7
regarding rejection of plaint under Order
7 Rule 11 (d) of C.P.C. was decided by
the trial judge against the plaintiffs and
accordingly the plaint was rejected
considering the averments made in the
written statement, vide judgment and
750 INDIAN LAW REPORTS ALLAHABAD SERIES
decree dated 4.3.2013. Against the decree
of the trial court, the plaintiff filed appeal
No. 301 of 2013 which was allowed by
the lower appellate court vide impugned
judgment and decree dated 28.2.2017,
setting aside the judgment and decree
passed by the trial judge; holding that the
plaint cannot be rejected under Order 7
Rule 11 (d) of C.P.C and directing the
trial court to decide the suit on merits.

9. The decree passed by the lower
appellate court is impugned in the present
second appeal.

10. I have heard Sri Pravesh Kumar,
learned counsel for the appellant and Sri
Nigamendra Shukla, learned counsel for
the respondents.

11. Contention of learned counsel
for the appellant is that the lower
appellate court had committed illegality
while setting aside the judgment and
decree passed by the trial court whereby
the suit was dismissed under Order 7 Rule
11 (d) of C.P.C. as barred by limitation
and the averment made in the written
statement ought to have been considered
at the pre trial stage. In support of his
contention, he has placed reliance upon
the judgment of Hon'ble Apex Court in
the Case of Central Provident Fund
Commissioner, New Delhi & Ors Vs.
Lala J.R. Education Society & Ors
reported in 2012 (121) ALR.

12. On the other hand learned
counsel
for
the
plaintiff-respondent
submits
that
while
considering
the
provisions of Order 7 Rule 11 (d) C.P.C.,
only the plaint averments are to be seen
and the averment made in the written
statement for rejection of plaint are
irrelevant. In support of his contention he
has relied upon the judgment of Hon'ble
Apex Court in the Case of P.V. Guru
Reddy Vs. Neeradha Reddy reported in
(2015) 8 SCC 331.

13. This Court on 2.5.2017 has
admitted the present appeal on the
following substantial questions of law:-

(1) Whether the lower appellate
court was correct in setting aside the
judgment of the trial court on the ground
that at the pre-trial stage the documents
filed by the defendant were not relevant.

(2) Whether the document in
Original Suit No. 969 of 1996 filed by the
plaintiff herein describing his parentage
was not a relevant material and could not
have been relied upon by the trial court.

14. I have considered the arguments
raised by the counsel for the parties and
as well as substantial questions of law
framed by the this Court while admitting
the appeal.

15. The preliminary issue framed by
the trial court was as to whether suit is
barred under Order 7 Rule 11 C.P.C.,
meaning thereby as to whether the plaint
is liable to be rejected under Order 7 Rule
11 (d) C.P.C., as barred by limitation. The
suit filed by the plaintiff- respondent was
for a declaration to the effect that the saledeed executed by the Trustee- defendant
no. 2 in favour of the defendant-appellant
be declared as null and void. Specific
averments had been made in the plaint
that the sale-deed in question was not in
the knowledge of the plaintiff-respondent
and the plaintiffs acquired the knowledge
of the said sale-deed in April, 2009 and
therefore, the suit was filed within time
on 3.5.2009. The objection raised by
defendant was that the suit is barred by
3 All. Ram Babu Vs. Raj Bahadur & Anr.
751
limitation as the plaintiffs and the
defendant were brother and their father
was one Fekhu Lal. However, in the
plaint, the plaintiff described his father as
one Vishambharnath, but, on the basis of
Paper No. 117-Ga/1 and 17-Ga/4 the trial
court has recorded a finding that the
father of the plaintiff also is Feku Lal and
the plaintiff has full knowledge of the
sale-deed executed on 12.10.1984 which
was
registered
on
15.1.1985
and
therefore, the suit filed by the plaintiff is
barred by limitation.

16. The appellate court reversed the
decree of the trial court on the ground the
under Order 7 Rule 11 (d) C.P.C. the
plaint can be rejected only on the basis of
averments made in the plaint and
averment made in the written statement
cannot be considered.

17. Now the question is as to
whether the plaint can be rejected under
Order
7
Rule
11
(d)
C.P.C.
on
consideration of the documents of the
earlier suit filed by the plaintiff and on the
basis
of
taking
into
consideration
averments in the written statement. For
this purpose, it is necessary to have a
glance on the provisions of Order 7 Rule
11 (d) C.P.C which reads as under:-

11.Rejection of plaint.- The
plaint shall be rejected in the following
cases:-

(a) .......

(b) .......

(c) .......

(d) Where the suit appears from
the statement in the plaint to be barred by
any law;

(e)......

(f).......

18. From the language used in Order
7 Rule 11 (d) C.P.C., it is apparent that
where the suit appears from the statement
in the plaint to be barred by any law, the
plaint is liable to be rejected.

19. The Hon'ble Apex Court in the
Case of P.V. Guru Reddy (supra) has
taken a view that rejection of plaint under
Order 7 Rule 11 (d) C.P.C is a drastic
power conferred in the court to terminate
a civil action at the threshold. It is the
plaint that has 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. The stand of the defendant in the
written statement or in the application for
rejection of plaint is wholly immaterial at
that stage in this regard, paragraph no. 5
and 6 of the decision in P.V. Guru Reddy
(supra) are quoted hereinunder:-

"5. Rejection of the plaint under
Order VII rule 11 of the 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 VII rule 11, therefore,
are stringent and have been consistently
held to be so by the Court. It is the
averments in the plaint that has 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 VII 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.
752 INDIAN LAW REPORTS ALLAHABAD SERIES

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 discloses 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 VII rule 11 the stand of the
defendants in the written statement would
be altogether irrelevant."

20. It is settled proposition of law as
taken by this Court as well as Hon'ble
Apex Court that while considering Order
7 Rule 11 (d) C.P.C, only plaint
averments have to be seen and therefore,
the document filed by defendant at pre
trial stage is not at all relevant, even the
documents relied upon by the trial court is
not relevant material for the purpose of
deciding, the issue regarding rejection of
plaint under Order 7 Rule 11 (d) C.P.C.
The judgment cited by learned counsel for
the respondents in the case Central
Provident Fund Commissioner, New
Delhi (supra) is not attracted at all in the
present case, as the Hon'ble Apex Court in
the said case has held that the rejection of
plaint on institutional ground is different
from the dismissal of a suit at pre trial
stage on the ground of maintainability.
The paragraph no. 7 of the decision in
Central Provident Fund Commissioner,
New Delhi (supra) is relevant which reads
as under:-

"7.
Accordingly
to
the
appellants,
the
respondents
have
suppressed crucial facts in the plaint,
which if seen, the suit is only to be
dismissed at the threshold. Rejection of a
plaint on institutional grounds is different
from dismissal of a suit at per-trial stage
on the ground of maintainability. For
dismissal on a preliminary issue, the
Court is entitled and liable to look into the
entire
documents
including
those
furnished by the defendant."

21. A bare reading of the paragraph
no. 7 quoted above, makes it clear that for
dismissal of the suit on a preliminary
issue regarding maintainability of the suit,
the court is entitled and liable to look into
all documents including those furnished
by the defendants.

22. Here in the present case, the
question
involved
is
regarding
the
rejection of plaint under Order 7 Rule 11
(d) CPC and the ratio as law laid down in
the decision of P.V. Guru Reddy (supra),
applies with full force in the facts and
circumstances of this case.

23. As a result of the above
discussion, both the substantial questions
of law as formulated in this case are
answered in the affirmative and decided
accordingly.

24. I do not find any illegality or
infirmity in the order impugned passed by
the lower appellate court.

25. The present second appeal lacks
merit and is accordingly dismissed.

26. No order as to costs.
----------
(2019)11ILR A753

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2019