Sandeep Sharma, Judge (oral):
1. Being aggrieved and dissatisfied with order dated 19.1.2023 passed by learned Civil Judge, Indora, District Kangra, Himachal Pradesh in CMA No. 30/2022 in CS No. 217/19, whereby an application under Order VII, rule 11 CPC, having been filed by the petitioner-defendant No.5 (hereinafter, ‘defendant No.5’) for rejection of plaint, having been filed by the respondent-/plaintiff (hereinafter, ‘plaintiff’) came to be dismissed, defendant No.5 has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set aside aforesaid order and allow the application under Order VII, rule 11 CPC.
2. Precisely, the facts as are necessary for the adjudication of the case are that plaintiff filed a civil suit titled Sukhdev Singh v. Secretary (Revenue) and others in the court of learned Civil Judge, Indora, District Kangra, Himachal Pradesh, for declaration to the effect that the sale deed Nos. 1 and 2, dated 6.1.1982 registered with Sub Registrar, Kangra at Dharamshala and sale document No. 338, dated 26.6.1989, No.86, dated 10.3.1989, No. 367, dated 15.7.1989 and No. 406, dated 10.81989 registered with Sub Registrar, Kangra at Dharamshala are illegal, null and void alongwith declaration to the effect that mutation Nos. 55 and 56, dated 28.9.1987 entered and attested in the name of firm are also illegal, null and void ab initio.
3. Defendant No.5 filed written statement to the civil suit taking preliminary objections of maintainability, cause of action, limitation, suit being barred under S.171 of the Himachal Pradesh Land Revenue Act and S.121-A of the Himachal Pradesh Land Reforms and Tenancy Act, 1972. Besides above, defendant No.5 also filed an application under Order VII, rule 11 read with S.151 CPC, for rejection of plaint on the ground of limitation and suit being barred under S.171 of the Himachal Pradesh Land Revenue Act and S.121-A of the Himachal Pradesh Land Reforms and Tenancy Act
4. However, prayer made on behalf of defendant No.5 as detailed hereinabove, came to be seriously opposed by the plaintiff by filing reply (Annexure P-4). In the afore application, learned trial Court, on the basis of pleadings of the parties adduced on record, passed dated 19.1.2023 (Annexure P-5), thereby rejecting the application filed by the defendant No.5 under Order VII, rule 11 CPC. In the aforesaid background, defendant No.5 has approached this Court in the instant proceedings.
5. Having heard learned counsel for the parties and perused the material available on record, vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this court sees sufficient reason to interfere in the impugned order as the same does not appear to be passed on the basis of proper appreciation of the facts as also law. In the suit detailed herein above, plaintiff is seeking declaration that sale deeds dated 6.1.1982, 26.6.1989, 10.3.1989, 15.7.1989 and 10.8.1989 executed in favour of defendant No.5 are null and void being registered in violation of S.118 of the Himachal Pradesh Land Revenue Act. In the application under Order VII, rule 11 CPC, defendant No.5, while making prayer for rejection of plaint, raised the ground that the suit apart from being undervalued is also time barred. As per plaintiff, cause of action arose in favour of the plaintiff on 6.1.1982, whereas, suit is filed in the year 2019 i.e. after around 37 years of execution and registration of sale deed. Apart from above defendant No.5 also stated in the application for rejection of plaint that suit is barred under S.171 of the Himachal Pradesh Land Revenue Act and S.121-A of the Himachal Pradesh Land Reforms and Tenancy Act and as such learned trial Court has no jurisdiction to decide the suit having been filed by the plaintiff.
6. As far as findings returned by learned court below qua issue raised by defendant No.5 of suit being undervalued and maintainability of suit on account of bar under S.171 of the Himachal Pradesh Land Revenue Act and S.121-A of the Himachal Pradesh Land Reforms and Tenancy Act is concerned, same call for no interference being legally correct but definitely, learned court below erred, while ignoring the objection of limitation raised by defendant No.5, while making prayer for rejection of plaint.
7. Mr. Adarsh K. Vashista, Advocate appearing for defendant No.5, vehemently argued that since the suit having been filed by the plaintiff is barred by limitation, learned court below ought to have accepted the prayer made on behalf of defendant No.5 for rejection of plaint having been.
8. On the other hand, Mr. Vijender Katoch, learned counsel for the plaintiff, supported the impugned order by stating that question of limitation being a mixed question of facts and law, can be decided on the basis of pleadings and evidence led on record by respective parties.
9. Before ascertaining the correctness and genuineness of rival submissions made by learned counsel for the parties, it would be apt to take note of provisions contained under Order VII, rule 11 CPC, which are reproduced herein below:
"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;
(f) where the plaintiff fails 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 papers 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 from correcting the valuation or supplying the requisite stamp papers, 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."
10. Bare perusal of aforesaid provision of law clearly reveals that the plaint can be rejected if it does not discloses cause of action and relief claimed is undervalued. If plaintiff despite being called upon by the Court, fails to correct valuation, court can reject the plaint. Most importantly, where suit appears from statement of plaint to be barred by any law, court while exercising power under Order VII, rule 11 CPC can reject the plaint.
11. It is further apparent from the afore provision of law, that when no plausible explanation is rendered on record qua delay in filing the suit, court below can reject the plaint being barred by limitation. It has been specifically provided under Order VII, rule 11 that where suit appears from statement of plaint to be barred by any law, court can reject the plaint. In the case at hand, it clearly appears from the averments made in the plaint that the suit is barred by limitation.
12. Art.58 of the Limitation Act prescribed limitation of three years to file suit relating to declaration and such time starts from the date, such right to sue first accrued. In the case at hand, right to sue, if any, accrued in favour of the plaintiff in the year 1982 and thereafter in 1989, but in the case at hand, suit came to be filed in the year 2019 i.e. after around 37 years from the date of accrual of first cause of action i.e. 1982.
13. Hon'ble Apex Court in Dahiben v. Arvindbhai Kalyani Bhanusali, (2020) 7 SCC 366, has categorically held that while considering prayer if any, made under Order VII, rule 11 CPC, court is to determine whether the plaint, prima facie, discloses any cause of action or not To ascertain cause of action, court is to read averments contained in the plaint with documents annexed thereto, without addition or subtraction. It is substance and not the averments, which has to be seen. Hon'ble Apex Court has further held that court is to find out whether that the plaint discloses real cause of action or illusory cause of action. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
14. Most importantly, in the aforesaid judgment, Hon'ble Apex Court, while taking note of Arts.58 and 59 of the Limitation Act, held that Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Hon'ble Apex Court held in Dahiben supra, as under:
“23.. We have heard the learned Counsel for the parties, perused the plaint and documents filed therewith, as also the written submissions filed on behalf of the parties.
23.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under:
“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 in 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;
(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 prevent by any cause of exceptional nature for correction 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.” (emphasis supplied)
23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be 11986 Supp. SCC 315 Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late Maharaja Mahedrasinhji, (1998) 2 GLH 823 permitted to waste judicial time of the court, in the following words :
“12. …The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.7. Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :
“Order 7 Rule 14: Production of document on which plaintiff sues or relies.–
(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at 2 Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512 the same time deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.” (emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power 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.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
23.11. 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. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr.,4 which reads as :
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court 3 Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 4 (2004) 9 SCC 512.5 (2007) 5 SCC 614 cannot embark upon an enquiry whether the allegations are true in fact.6
23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra.7 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1 In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held :
“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded” (emphasis supplied)
24.2. In T. Arivandandam v. T.V. Satyapal & Anr. this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : -
“5. …The learned Munsiff must remember that if on a meaningful – not 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 O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has 8 (2005) 10 SCC 51 created the illusion of a cause of action, nip it in the bud at the first hearing …” (emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal,10 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal11 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.
The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :
Description of suit Period of limitation
Time from which period begins to run
- To obtain any other declaration.
Three years When the right to sue first accrues.
- To obtain any other declaration.
Three years When the right to sue first accrues.
Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.”
15. Recently, Hon'ble Apex Court in Ramisetty Ventakanna & Anr. v. Nasyam Jamal Saheb & Ors., Civil Appeal No. 2717 of 2023, decided on April 28, 2023, reiterated that the plaint ought to be rejected when it is vexatious, illusory cause of action and barred by limitation and it is a clever case of clever drafting. Relevant paras of aforesaid judgment read as under:
“5. We have heard learned counsel appearing on behalf of the respective parties at length. We have also gone through the averments made in the plaint. On going through the averments, it appears that the suit is essentially based upon the premise that there was an error in partition deed dated 11.03.1953 and in partition deed survey number 706/A9 was wrongly mentioned. Therefore, it is the case on behalf of the plaintiffs that Sarambee and other descendants including the vendors of the appellants never had any right to effect transactions in respect of the land in survey number 706/A9. However, it is required to be noted that despite the above, very cleverly the plaintiffs have not sought any relief with respect to partition deed dated 11.03.1953. Deliberately and purposely, the plaintiffs have not prayed any relief with respect to partition deed dated 11.03.1953 though it is the case on behalf of the plaintiffs that there was an error in partition deed dated 11.03.1953. It is to be noted that pursuant to the partition deed dated 11.03.1953, after the demise of the original land owner Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties under a registered partition deed dated 11.03.1953. Under the registered partition deed, predecessor in interest of plaintiffs, N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants Sarambee got 1 acre 16 cents. All the parties to the registered partition deed acted upon the said partition deed. That thereafter, further transaction took place and Sarambee executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter Kareembee – mother of the vendors of the appellants to an extent of lands measuring 58 cents. That thereafter, two sons of Kareebee who became co-owner on the death of Kareembee executed the registered sale deed dated 24.08.2010 in favour of the appellants in Survey No. 706/A9 to an extent of land measuring 58 cents for a valid sale consideration. Since 2010, the appellants are in possession of the land purchased vide registered sale deed dated 24.08.2010. Without challenging partition deed dated 11.03.1953 and even subsequent gift deed dated 24.01.1968, the plaintiffs have instituted the present suit with the aforesaid prayers which is nothing but a clever drafting to get out of the limitation. If partition deed dated 11.03.1953 was to be challenged which as such, the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after lapse of 61 years from the partition deed.
5.1 In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed as under: -
“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not 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 7 Rule 11 CPC 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 10 CPC. An activist Judge is the answer to irresponsible law suits.”
5.2 In the case of Sopan Sukhdeo Sable Vs. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under:
“11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)”
5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174, this Court observed and held as under:
“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 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 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 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 7 Rule 11 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.”
5.4 In the case of Ram Singh Vs. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra).
6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law.
7. Now, so far as the reliance placed on the decision of the Privy Council referred to hereinabove and on the decision of this Court in the case of Subhaga (supra) are concerned, there cannot be any dispute with respect to the proposition of law laid down in the aforesaid two decisions. However, the question is the suit being barred by limitation and the illusory cause of action. 7.1 Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, on considering the averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting.”
16. Since, in the case at hand, suit filed by the plaintiff is barred by limitation and no plausible explanation ever came to be rendered on record on behalf of the plaintiff qua delay in filing the suit for declaration, impugned order passed by learned court below cannot be said to be passed in accordance with law and as such, same is not sustainable in the eye of law.
17. In view of the detailed discussion made above and law taken into consideration, the petition is allowed. Order dated 19.1.2023 passed by learned Civil Judge, Indora, District Kangra, Himachal Pradesh in CMA No. 30/2022 in CS No. 217/19 is set aside. The suit filed by the plaintiff is rejected on the ground of limitation. Petition stands disposed of in the afore terms, alongwith all pending applications.
