While Contesting Application Under Order VII Rule 11 CPC Only Contents Of Plaint Are To Be Seen: Punjab & Haryana High Court

It is trite that at the time of contesting the application under Order VII Rule 11 CPC only the contents of the plaint are to be seen and not those of the application under Order VII Rule 11 CPC or any other pleadings.

Reliance was placed on Chhotanben & Anr. vs. Kiritbhai Jalkrushnabhai Thakkar & Ors., where the Supreme Court held that to answer an issue in the context of the application under Order VII Rule 11(d), it is relevant to examine the averments in the plaint. The Top Court added that 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 VII Rule 11(d). 

The bench comprising Justice Alka Sarin also noted that only three arguments were raised before the Trial Court and the question of court fees not being pressed before the Trial Court now being raised for the first time deserves to be rejected.

There were three arguments raised before the Trial Court as noticed above; firstly, that the suit was barred by limitation; secondly, that the same was barred by the provisions of Prohibition of Benami Property Transactions Act, 1988; and thirdly, that proper court fees had not been affixed. The question of court fees was not pressed before the Trial Court. The argument now being raised for the first time, hence, deserves to be rejected on this score alone.

The court further noted that the question of whether the suit is barred under Order II Rule 2 CPC cannot be possibly gone into without appreciation of evidence. Court also rejected the argument that the suit is barred by limitation.

Further the question of whether the suit is barred under Order II Rule 2 CPC cannot be possibly gone into without appreciation of evidence. The argument raised by learned counsel for the defendant no.1- petitioner that the suit is barred by limitation also deserves to be rejected for the following reasons.

After relying on the Supreme Court's judgment in the case of Salim D. Agboatwala & Ors. vs. Shamalji Oddhavji Thakkar & Ors. [AIR 2021 SC 5212], Chhotanben & Anr. vs. Kiritbhai Jalkrushnabhai Thakkar & Ors. [2018(5) RCR (Civil) 163] and further in Urvashiben & Anr. vs. Krishnakant Manuprasad Trivedi [2019(1) RCR (Civil) 366], the court held that it cannot be said that the suit is barred by limitation.

In view of the law laid down by the Hon'ble Supreme Court as well as on a meaningful reading of the plaint, it cannot be said that the suit is barred by limitation.

Further, the court concluded that there is no illegality or infirmity in the impugned order passed by the Trial Court. Therefore, the petition is liable to be dismissed for being sans merit.

Case Title : Rakesh Khanna @ Babbu v. Gulzari Lal and Others

Citation: 2022 LiveLaw (PH) 113 

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