Test For Exercising Power Under Order 7 Rule 11 CPC Is Whether Plaint Averments Taken In Entirety Would Result In Decree Being Passed: Madhya Pradesh HC

The bench of Justice Anil Verma perused Order 7 Rule 11 CPC and observed, “In exercise of powers under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.”

Advocate Murtaza Bohra appeared for the Petitioner and Advocate Murari Lal Pathak appeared for the Respondent.

Brief Facts-

The respondent/plaintiff Girish Pathak filed a civil suit for specific performance of agreement and permanent injunction before the trial court by stating that a sale agreement was executed in respect of land by the petitioner and other respondents in his favour. The said agreement was renewed multiple times. A legal notice was sent to the petitioner and other respondents for specific performance of the contract but since no response was received by the plaintiff, therefore, the suit.

The Petitioner filed an application under Order 7 Rule 11 which was dismissed by the trial Court because firstly the matter is to be adjudicated based on pleadings of the parties and that the question of limitation is a mixed question of law and fact and it can only be adjudicated after recording evidence.

The Court mentioned the decision of the Supreme Court in Om Agrawal Vs. Haryana Financial Corporation and others reported in 2015(4) MPLJ 495 and quoted, “An application for rejection of the plaint can be filed, if the allegations made in the plaint taken to be correct as a whole on its face value show the suit to be barred by any law. The question as to whether a suit is barred by any law or not would always depend upon the facts and circumstances of each case. However, for deciding this question, only the averments made in the plaint are relevant.”

The Court relied on the decision of the Bombay High Court in Gajanan R. Salvi Vs. Satish Shankar Gupte reported in AIR 2004 Bom 455 and quoted, “On the other hand, in substance, what is to be seen is, whether the foundation in the previous suit as well as present suit is one and the same and further what type of rulings would have been there available for seeking relief in this previous suit that was prayed."

According to the Court, in present as well as earlier cases the foundation is the same and the evidence that would be required is also the same. Therefore, it appears that at the time of filing of the earlier suit it was within the knowledge of the plaintiff and he could have sought the relief of specific performance of contract because all the allegations made in the earlier suit were themselves enough to ask for relief.

The Court further stated that the agreement prescribed the period for the performance of the contract by the plaintiff, hence, the suit ought to have been filed within three years. As the suit was filed before the trial court after 11 years of entering into the agreement to sale, therefore, as per Article 54 of the Limitation Act suit is also barred by time.

Accordingly, the Court stated that the present suit is barred by time because the earlier suit filed by the plaintiff was merely seeking relief of injunction simpliciter without claiming relief of specific performance of contract. Therefore, the present suit is not maintainable on the same cause of action.

The Court allowed the Petition while setting aside the impugned order.

Cause Title: Kishore Prajapati v. Girish Pathak

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