IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2084 of 2007 SHEIKH SHAHID ZAHIRUL HAQUE son of late Hazi Ainul Haque, resident of village Gulzar Manzil, Naya Bazar, Siwan, P.S. Siwan Town, P.O. & District Siwan… ..Defendant/Petitioner Versus DR.DABIR AHAMAD RIZVI son of late Jalil Ahamad “Azad”, resident of mohalla Asinagar, P.S. Siwan Town, P.O. & District Siwan… Plaintiff/Opposite Party For the Petitioner: Mr. Y.V. Giri, Sr. Advocate Mr. Raju Giri, Advocate For the Opp.Party: Mr. Shashi Shekhar Dvivedi, Sr.Adv. M/s Ranjan Kumar Dubey, Sangeeta Sharma and Rakesh Chandra, Advocates ----------- 4 21.07.2010 This civil revision is directed against the order dated 06.09.2007 passed by the Subordinate Judge I, Siwan in Title Suit No. 377/06, whereby the court concerned has rejected the application dated 14.02.2007 filed by the defendant-petitioner under Order VII Rules 11(a) and (d) of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) for rejecting the plaint. This civil revision is being disposed of at this stage with consent of the parties, who have been heard, and after perusal of the records of this case. Title Suit No. 377 of 2006 has been filed by the opposite party for granting a decree for specific performance of contract directing the petitioner to execute a sale deed after 2 receiving the balance amount of Rupees Three Lacs and for putting him in possession of the suit premises as an absolute owner. The case of the plaintiff, as set out in the plaint, in short is that he was tenant of the defendant-petitioner and subsequently there was an agreement for sale of the suit premises upon payment of part of consideration amount of Rs. 35,000/- on 03.07.1997. Subsequently, the defendant again approached the plaintiff on 04.11.1997 and upon payment of further part of the consideration amount of Rs. 25,000/- to the defendant again a deed of agreement was executed. Thereafter on 20.03.1998 again a payment of Rs. 40,000/- was made and the defendant granted the money receipt acknowledging the earlier deed of agreement and further making statement that he had put the plaintiff in possession of the suit premises. However, though the plaintiff several times approached the defendant to execute the sale deed after receiving the balance consideration amount but on one pretext or the other the execution of the sale deed was deferred. Further case of the plaintiff is that he lastly requested the defendant to execute the sale deed but evasive reply was given and the plaintiff came to know that an 3 eviction suit was filed in Civil Court, Siwan for eviction of the plaintiff from the suit premises, which revealed his intention that he was not willing to perform his part of thecontract. It had been stated that no time limit was fixed in the agreement, thus, cause of action arose on 03.07.1997, the date of execution of the deed of agreement and lastly on 15.07.2006, when the last attempt for performance of contract was refused by the defendant-petitioner. Learned counsel appearing for the defendant- petitioner submitted that in fact, in the first agreement dated 03.07.1997, though there is no recital in the body regarding the specific date within which the parties to it were to perform the contract, however, in the last sentence it had been mentioned that the same was an agreement for two months.. Thus, it would be presumed that date of performance would be two months from the date of execution of the aforesaid document and the agreement dated 03.07.1997 became redundant after expiry of aforesaid period of two months. It was further submitted that the second document dated 07.11.1997 had been created fraudulently and could not be considered as an agreement to sale. It was further urged that the third document dated 20.03.1998 had also been created 4 fraudulently and does not establish creation of contract or extension of any kind of agreement to sale. Further contention was that there was no question of delivery of possession since the plaintiff-opposite party, as indicated in the document dated 20.03.1998, was already in possession of the suit premises as a tenant. Thus, it had been urged that there was no cause of action and as such, the plaint should have been rejected. Copies of the documents dated 03.07.1997 as well as 07.11.1997 have been brought on record as annexures 3 and 4, however, copy of the third document dated 20.03.1998 is not on record. Learned counsel alternatively submitted that even if it is assumed that there was no time limit of performance of contract as per Article 54 of the Limitation Act, 1963 (hereinafter to be referred to as “the Act”), the limitation period prescribed for institution of such suit would be within three years from the date when the plaintiff has noticed that the performance has been refused and in the absence of any statement regarding any such written notice in the plaint, the suit is hopelessly time barred as the same had been instituted in the year 2006 for performance of the contract of the year 1997. Learned counsel drew the attention of this Court towards the impugned order to demonstrate that 5 the application of the plaintiff had been rejected only on the ground that the plaint already stood admitted, whereas, it is well settled principle of law that the provisions under Order VII Rule 11 of the Code can be invoked at any stage. In support of his submission learned counsel had placed reliance upon a decision of the Supreme Court in T. Arivandandam v. T.V. Satyapal & anr., reported in 1977(4) SCC, 467 to show that on meaningful reading of the plaint if the suit is found to be vexatious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rules 11of the Code. Learned counsel had also placed reliance upon a decision of the Supreme Court in N.V. Srinivasa Murthy & ors. V. Mariamma (dead) by proposed LRs & ors., reported in 2006(1) Patna Law Journal Reports, Supreme Court, 1) to show that if a hopelessly time barred suit was filed with drafting the same cleverly to get over the bar of limitation the same would be liable to be rejected under Order VII Rule 11 of the Code. Lastly, learned counsel had placed reliance upon yet another decision of the Supreme Court, rendered in Abdul Khader Rowther v. P.K. Sarabhai & others (AIR 1990 Supreme Court, 682). On the strength of the aforesaid decision it was 6 submitted that if the plaint did not contain the requisite allegation that the plaintiff is ready and willing to perform his part of contract the decree of specific performance cannot be granted. On the other hand, learned counsel for the plaintiff-opposite party submitted that the endeavour of the defendant-petitioner for the purpose of rejection of the plaint under Order VII Rules 11of the Code is wholly misconceived inasmuch as, even if it is assumed that the first agreement dated 03.07.1997 was for two months, that followed another agreement by executing a subsequent document on 7.11.1997 and thereafter in the year 1998 on the basis of part payment, a money receipt was granted by the defendant-petitioner acknowledging the earlier agreement as well as also indicating therein that in lieu of part payment possession of the suit premises was handed over to the plaintiff. Thus, it had been urged that there had been recurrent cause of action. However, in the second document also no time limit for performance of the contract had been stated. Thereafter, the last attempt for performance of contract was made by the plaintiff on 15.07.2006 and it has been stated in the plaint that there had been refusal of performance and also that the 7 plaintiff came to know that one eviction suit had been filed for his eviction as a tenant. Thus, learned counsel contended that the notice of last refusal is apparently on 15.07.2006, which was the date of knowledge as aforesaid. It is submitted that no written refusal is required as per law. Learned counsel drew attention of this Court towards paragraph 11 of the plaint, which had been brought on record as annexure 5 by the petitioner, to demonstrate that the plaintiff has expressly shown his willingness to perform his part of contract. Thus, it had been urged that the court below had correctly rejected the prayer of the defendant-petitioner for rejection of the plaint. On consideration of rival submissions of the parties, I find force in the submission raised on behalf of the plaintiff-opposite party. It is well settled that for the purpose of passing an order under Order VII Rules 11 of the Code, the concerned court has to take decision only on a meaningful reading of a plaint as a whole as it cannot take resort to the written statement filed on behalf of the defendant or other document for that purpose. No doubt, a plaint can be rejected on ground of limitation as well, since the same would also come within the meaning of clause (d) of Order 7 Rule 11 of the Code. It is also well settled that whether a plaint discloses 8 a cause of action is essentially a question of fact, but, whether it does or does not has to be found out from reading of the plaint itself and for the said purpose the averments made in the plaint in their entirety must be held to be correct. The Apex Court in Hardesh Ores (P) Ltd. V. Hede & Company ((2007)5 Supreme Court Cases, 614) has held that for the aforesaid purpose the test would be as to whether on the averments made in the plaint, if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether the ingredients of Rule 11 of Order VII of the Code are applicable. It would be pertinent to quote the relevant passage of the aforesaid decision of the Apex Court as under: “25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that “law” within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from 9 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 whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and Popat and Kotecha Property v. State Bank of India Staff Assn.” In my opinion, learned counsel for the petitioner could not demonstrate that on reading of the plaint it would be manifest that no cause of action has arisen or the suit is time barred. Learned counsel also could not establish to the 10 satisfaction of this Court that in terms of Article 54 of the Limitation Act regarding notice of refusal, a written refusal by the defendant was required as the same is not reflected from the reading of the aforesaid provisions. It is true that the court below has erroneously held that on plaint already having been admitted it was not proper to reject the same under Order 7 Rule 11 of the Code. No other reason has been shown for rejecting the prayer of the defendant-petitioner. But that would not come in help of the petitioner as the defendant- petitioner could not establish even before this Court that the suit was not maintainable. Thus, it is held that since no sufficient ground could be shown by the defendant-petitioner for rejection of the plaint under Order 7 Rule 11 of the Code, this civil revision is devoid of any merit. Accordingly, the Civil Revision is dismissed. SC ( Dr. Ravi Ranjan, J.)