(Prayer: This review petition is filed under Order 47 rule 01 r/w Section 114 of CPC Praying call for the entire records in CRP no. 04/2024 penidng on the file of this hon’ble court and etc.)
Cav Order:
1. The petitioners, who were respondents in Civil Revision Petition No.4/2024 are before this court seeking for the following reliefs:
i. Call for entire records in CRP No.4/2024 pending on the file of this Hon’ble Court.
ii. To review the Order dated 15.07.2024 made in CRP No.4/2024 passed by this Hon’ble Court and to restore the Civil Revision Petition to its original file for fresh disposal on merits of the case in the ends of justice and equity.
iii. Grant such other and further reliefs as are just even including the cost of this petition in the ends of justice and equity.
2. A suit in OS No. 256 of 2012 had been filed seeking for the following reliefs:
1. Pass an Order to dismiss the suit as being devoid of any cause of action against Defendant No.2 in respect of Item No.1 of the Schedule.
2. To exclude the Item No.1 from the suit schedule property as the Plaintiffs are not entitled to any of the relief’s claimed by them in respect of Item No.1 of the suite schedule property.
3. Pass any other order or relief’s that this Hon’ble Court may deem just, necessary or equitable in the facts of the case.
3. The contention urged in the suit was that the sale deed dated 31.07.1991 had been executed without any legal or family necessity and, on that basis, a challenge thereto was made in O.S. No.256 of 2012. During the pendency of the suit, an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, came to be filed seeking rejection of the plaint on the grounds that the plaint did not disclose a cause of action, was barred by limitation and was otherwise not maintainable.
4. The said application was dismissed by order dated 23.08.2023, the Trial Court holding, inter alia, that there is no specific period of limitation prescribed for a coparcener to seek a declaration that a sale deed is not binding on the coparcenary. The Trial Court further held that, since the suit related to several properties, the plaint could not be rejected in part.
5. Aggrieved by the dismissal of the application under Order VII Rule 11 CPC, the defendants preferred C.R.P. No.4 of 2024. This Court, by order dated 15.07.2024, allowed the Civil Revision Petition, holding that the rejection of the plaint insofar as a particular property is concerned would not amount to a partial rejection of the plaint, but would constitute a complete rejection in respect of such property.
6. The present review petition is filed seeking review of the aforesaid order dated 15.07.2024.
7. Sri.S.Y.Shivalli, learned counsel for the petitioner would submit that:
7.1. Due to inadvertence, several contentions could not be urged when the above revision petition was taken up for consideration. His submission is that he could not place several judgments for consideration of this Court. If those judgments had been placed on record and if this Court had considered those judgments, the order under review would not have been passed, and, in fact, the Revision Petition would have been dismissed.
7.2. A partial rejection of plaint is not permissible either in respect of a particular property or a particular defendant, this plaint would have to be rejected in toto or not at all. He relies upon the decision of the Hon'ble Lahore High Court in Maqsud Ahmad and Another -v- Mathra Datt and Company and others (AIR 1936 Lahore 1021) , more particularly para 3 and 4, which are reproduced hereunder for easy reference:
3. On 1st October, 1935, the plaintiffs preferred a petition for revision to this Court. The main ground for revision was, that the Court was not entitled to reject the plaint in part, and that the order of the trial Court to that effect was illegal. On 9th October an appeal against the note of the trial Court, dated 31st May, 1935, and reproduced above, was filed in this Court. The grounds of appeal were on the Same lines as the grounds for the petition for revision, and it was stated that a copy of the order appealed against as well as the vakalatnama had been attached to the petition for revision which had already been filed.
4. The learned counsel for the respondent has taken a preliminary objection to the effect that no petition for revision is competent in the present case as the note recorded by the trial Court amounts to an order rejecting the plaint and is, therefore, appealable. I am of the opinion that this objection is without any force. The Court has net passed any definite order rejecting the plaint. Under one of the issues it has recorded a note that as the plaint does not disclose the reason for the claim for interest that claim would not be considered. There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial Court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code. I am, therefore, of the opinion that the note to which reference has been made does not give a right of appeal. If no appeal lies a revision would be the only remedy available to the plaintiffs.
7.3. By relying on Maqsud Ahmad case, he submits that the Code of Civil Procedure does not contemplate rejection of a plaint in part and, therefore, this Court could not have directed rejection of the plaint insofar as a particular property alone is concerned.
7.4. He relies upon the decision of the Hon'ble High Court of Delhi in Madhu Bhargav & Another -v- Reena Bhargava (CRP 1/2024 and CRP 18/2024) more particularly para 8 thereof, which is reproduced hereunder for easy reference:
8. This Court does not find any infirmity, material irregularity, or irregular exercise of jurisdiction insofar as the impugned order is concerned. In an application under Order VII Rule 11 CPC a plaint cannot be rejected in part. This principle has been well established by the Supreme Court in the following decisions:
i) Sejal Glass ltd. -v- Navilan Merchants (P) Ltd., (2018) 11 SCC 780
“4. It is settled law that the plaint as a whole alone can be rejected under Order 7 Rule 11. In Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337 : AIR 1936 Lah 1021] , the High Court held that a note recorded by the trial court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms: (AIR p. 1022 para 4 : SCC OnLine Lah para 4)
“4. … There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code.”
5. Similarly, in Bansi Lal v. Som Parkash [Bansi Lal v. Som Parkash, AIR 1952 Punj 38] , the High Court held: (AIR p. 39, para 7)
“7. But the real question which arises in this appeal is whether there can be a partial rejection of the plaint. Mr Chiranjiva Lal Aggarwala submits that a plaint can either be rejected as a whole or not at all, and he has relied on a statement of the law given in Mulla's Civil Procedure Code at p. 612 where it is stated: “This rule (Order 7 Rule 11) does not justify the rejection of any particular portion of a plaint.”
In support of this statement the learned author has relied on Raghubans Puri v. Jyotis Swarupa [Raghubans Puri v. Jyotis Swarupa, ILR (1906-07) 29 All 325] , Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123 : ILR 54 Mad 416 : AIR 1931 Mad 175] and Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337 : AIR 1936 Lah 1021]. In reply to this argument Mr Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly.”
6. In Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123 : ILR 54 Mad 416 : AIR 1931 Mad 175] , the Madras High Court held: (AIR p. 176 : SCC OnLine Mad)
“… Referring to Section 54 of the old Civil Procedure Code, the learned Judges state that that section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. Section 54 now corresponds to Order 7 Rule 11 of the Civil Procedure Code. The plain meaning of that rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint. Non-compliance with the requisites of Section 80 of the Civil Procedure Code, was taken to be a ground covered by clause (d) of Rule 11, abovereferred to. Even if it should be taken that that clause does not strictly apply to the present case, I must hold that the suits are liable to dismissal on account of non-compliance with Section 80 of the Civil Procedure Code.”
It was further found that if the suit was dismissed for want of notice against the Government under Section 80 CPC, it cannot be allowed to proceed against the other defendants for the reason that the Government's right to resume inam lands, on the facts of that case, stands unaffected, and that being so, the plaintiff's claim to recover possession of such lands from other defendants would also fall to the ground for the simple reason that they have no right then to resume those inams. It was, therefore, held on the peculiar facts of that case that for the reasons given the suit would fail as a whole.
7. However, in Kalapu Pala Subrah manayam v. Tiguti Venkata Peddiraju [Kalapu Pala Subrahmanayam v. Tiguti Venkata Peddiraju, 1970 SCC OnLine AP 30 : AIR 1971 AP 313] a Single Judge referred to Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123 : ILR 54 Mad 416 : AIR 1931 Mad 175] , and then held that the suit was barred by time in respect of only certain items of property and not in respect of others. Despite this, it was held that since the plaint as a whole should have been rejected, the baby was thrown out with the bathwater, and the entirety of the plaint and not merely the properties against which the suit could not proceed (as it was barred by limitation), was rejected.
8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.
7.5. By relying on Madhu Bhargav case, which in turn relies upon the decisions of the Hon'ble Supreme Court including Sejal Glass Ltd. v. Navilan Merchants (P) Ltd. [(2018) 11 SCC 780], and the earlier decision of the Lahore High court in Maqsud Ahmad v. Mathra Datt and Company1 (supra), learned counsel submits that a plaint cannot be rejected in part and that the provisions of Order VII Rule 11 of the Code contemplate either rejection of the plaint in its entirety or its continuation as a whole. It is therefore contended that the order under review, insofar as it directs rejection of the plaint only in respect of a particular property, is contrary to the aforesaid settled principles of law.
7.6. Learned counsel would thus submit that the order dated 15.07.2024 suffers from an error apparent on the face of the record and, therefore, warrants interference in exercise of the review jurisdiction of this Court.
7.7. He relies upon the decision of the Hon'ble Apex Court in Karan Singh -v- Amarjit Singh (SLP (c) No.3560-3561/2023) more particularly para 6 and 23 thereof, which are reproduced hereunder for easy reference:
6. The trial court rejected the application under Order 7 Rule 11 of CPC, vide order dated 07.01.2020, holding that on a plain reading of the plaint it cannot be held that the suit is ex facie barred by limitation; moreover, the question of limitation is a mixed of question of law and fact therefore, it would not be appropriate to reject the plaint under Order 7 Rule 11 of CPC. As regards the plea of suit being barred by Order 2 Rule 2 of CPC, the trial court held that the same can be decided as an issue in the suit.
23. At this stage, we may observe that the High Court while deciding the revision has failed to consider the plaint averments in its entirety and was swayed only by the fact that will set up was 36 years old. It overlooked that will operates only on the death of the testator and here, after the death of the testator, the validity of the will was throughout questioned in mutation proceedings which continued and, ultimately, settled in the year 2017. In between, whether the defendants perfected their title by adverse possession would be a mixed question of law and fact and can appropriately be addressed only after evidence is led. The same cannot be made basis to reject the plaint at the threshold. In our view, therefore, the order passed by the High Court cannot be sustained and the same is liable to be set aside. The appeals are, therefore, allowed. The impugned judgment and order(s) of the High Court are set aside. The order of the trial court rejecting the prayer to reject the plaint under Order 7 Rule 11 CPC is restored. The trial court shall proceed with the suit and bring the proceedings to its logical conclusion in accordance with law. It is made clear that any observation made by us shall not be taken as an opinion on the merit of the issues which may arise for consideration in the course of the suit proceedings. We clarify that we have addressed those issues only with a view to find out whether it was a fit case for rejection of the plaint under Order 7 Rule 11 of CPC.
7.8. By relying on Karan Singh case, his submission is that the question of limitation is ordinarily a mixed question of fact and law and, therefore, cannot be summarily adjudicated while considering an application under Order VII Rule 11 of the Code of Civil Procedure. He submits that the finding that the plaint does not disclose a cause of action is founded on the premise that the suit is barred by limitation. Since the issue of limitation in the present case involves disputed questions of fact requiring adjudication on the basis of evidence, this Court, while exercising jurisdiction under Order VII Rule 11 CPC, ought not to have held that the suit is barred by limitation merely because the impugned sale deed had been executed in the year 1991 and the suit came to be instituted only in the year 2012.
7.9. Learned counsel would therefore contend that the question as to when the plaintiffs acquired knowledge of the sale transaction, whether the alienation was for legal necessity and whether the challenge thereto is within limitation are all matters which require a full-fledged trial and could not have been decided at the threshold.
7.10. He relies upon the decision of the Hon'ble Apex Court in B.S.Lalitha -v- Bhuvanesh & others (SLP (C) No. 23709 of 2024 DD 15.05.2026) , more particularly paras 28 and 57 thereof, which is reproduced hereunder for easy reference:
28. On merits, it was argued that there was an oral partition in 1985, a Palupatti (family settlement document) in 1988 in which the daughters received monetary consideration and endorsed the family partition, which amounts to relinquishment and estoppel. It was also submitted that the appellants have not specifically pleaded a claim under Section 8 in the plaint and cannot be allowed to take advantage of clever drafting. Reliance was placed on T. Arivandandam v. T.V. Satyapal6, and Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust , for the proposition that frivolous and vexatious plaints are liable to be rejected.
57. The respondents' reliance on T. Arivandandam (supra) and Church of Christ Charitable Trust (supra), does not assist their case. Those decisions deal with plaints that are palpably frivolous or vexatious or that do not disclose any cause of action whatsoever. The present plaint is not of that character. It sets up a specific case of intestate death of the propositus, claims a right as Class I heirs under Section 8, and challenges the validity of a partition executed without the daughters' knowledge or consent. The plaint discloses a clear cause of action that warrants adjudication at trial.
7.11. By relying on B.S.Lalitha, his submission is that a plaint can be rejected under Order VII Rule 11 of the Code of Civil Procedure only where the suit is palpably frivolous or vexatious or where it does not disclose any cause of action whatsoever. He contends that the present suit, being one for partition amongst family members and involving a challenge to an alienation allegedly effected without legal necessity, cannot by any stretch be characterised as frivolous or vexatious.
7.12. It is further submitted that the issues arising in the suit require adjudication on the basis of pleadings and evidence and, therefore, the Trial Court ought to conduct a full-fledged trial. According to the learned counsel, this Court, while exercising revisional jurisdiction, ought not to have directed rejection of the plaint, even in part, while considering an application under Order VII Rule 11 CPC.
8. Sri.Pawan Shyam, learned counsel for Sri.Dhananjay.K.V, learned counsel for respondent respondent No.1 submits that,
8.1. It is contended that the plaint has been rejected in its entirety insofar as Item No.1 of the suit schedule property is concerned, which corresponds to prayer (b) in the suit. A sale deed in respect of Item No.1 property having been executed on 31.07.1991 and the suit having been instituted only in the year 2012, the challenge to the said alienation is clearly barred by limitation. It is submitted that merely because the plaintiffs have also sought partition and separate possession in respect of other properties, the same would not dilute or obliterate the fact that the challenge to the alienation of Item No.1 property has been laid nearly 21 years after the execution of the sale deed.
8.2. Learned counsel further submits that the object and purport of Order VII Rule 11 CPC is to ensure that a defendant is not compelled to undergo a frivolous and vexatious trial. According to him, if the suit were to proceed to trial in its entirety, including insofar as Item No.1 property is concerned, the proceedings relating to the said property would be palpably frivolous and vexatious, the claim being ex facie barred by limitation.
8.3. It is therefore contended that where a claim in respect of a particular property or a specific relief sought in the plaint is demonstrably barred by law or is otherwise not maintainable, the Court is empowered to reject the plaint insofar as such property or relief is concerned, so as to prevent unnecessary and protracted litigation.
8.4. He relies upon the decision of the Hon'ble Apex Court in Church of Christ Charitable Trust and Educational Charitable Society -v-Ponniamman Educational Trust [(2012) 8 SCC 706], more particularly para 9, 29 and 30 thereof, which are reproduced hereunder for easy reference:
9. The points for consideration in this appeal are:
(a) Whether the learned Single Judge of the High Court was justified in ordering rejection of the plaint insofar as the first defendant (the appellant herein) is concerned? and
(b) Whether the Division Bench of the High Court was right in reversing the said decision?
29. Finally, the learned Senior Counsel for the respondent submitted that in view of a decision of this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487] , rejection of the plaint in respect of one of the defendants is not sustainable. We have gone through the facts in that decision and the materials placed for rejection of plaint in the case on hand. We are satisfied that the principles of the said decision do not apply to the facts of the present case where the appellant-first defendant is not seeking rejection of the plaint in part. On the other hand, the first defendant has prayed for rejection of the plaint as a whole for the reason that it does not disclose a cause of action and not fulfilling the statutory provisions. In addition to the same, it is brought to our notice that this contention was not raised before the High Court and particularly in view of the factual details, the said decision is not applicable to the case on hand.
30. In the light of the above discussion, in view of the shortfall in the plaint averments and statutory provisions, namely, Order 7 Rule 11, Rule 14(1) and Rule 14(2), Forms 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned Single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the first defendant, the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the plaintiff was given to the second defendant in the suit and rightly rejected the plaint as against the first defendant. Unfortunately, the Division Bench failed to consider all those relevant aspects and erroneously reversed the decision of the learned Single Judge. We are unable to agree with the reasoning of the Division Bench of the High Court.
8.5. By relying on Ponniamman Educational Trust, his submission is that the Hon'ble Supreme Court has categorically held that where no cause of action is disclosed against a particular defendant, the suit cannot be permitted to proceed against such defendant. He submits that, in the said case, the Hon'ble Supreme Court upheld the rejection of the plaint insofar as the first defendant was concerned in exercise of powers under Order VII Rule 11 CPC.
8.6. Learned counsel therefore contends that the principles laid down in Ponniamman Educational Trust clearly indicate that where the plaint does not disclose a cause of action, or where the claim is otherwise barred by law insofar as a particular defendant, property or relief is concerned, the Court would be justified in exercising its powers under Order VII Rule 11 CPC to reject the plaint to that extent, notwithstanding the continuance of the suit in respect of the remaining claims.
8.7. He relies on the decision of the Hon’ble Apex Court in Sejal Glass Limited -v- Navilan Merchants Private Limited6, more particularly para No 4 & 8 thereof, which are reproduced hereunder for easy reference:
4. It is settled law that the plaint as a whole alone can be rejected under Order 7 Rule 11. In Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337 : AIR 1936 Lah 1021] , the High Court held that a note recorded by the trial court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms: (AIR p. 1022 para 4 : SCC OnLine Lah para 4)
“4. … There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code.”
8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.
8.8. By relying on the Sejal Glass Limited case, his submission is that the plaint can always be rejected as a whole against some of the defendants against whom there is no cause of action and that if the plaint survives against certain defendants, the suit must proceed against those defendants or properties.
8.9. He relies on the decision of the Hon’ble Bombay High Court in Sheela Ram Vidhani and another -v- S.K.Trading company and others [(2021) SCC Online Bom 864] , more particularly paras 8, 10, 11, 12 and 34 thereof, which are reproduced hereunder for easy reference:
8. Both sides have made exhaustive submissions and also filed written notes of arguments. Both Learned Counsels have relied on several decisions. However, we deem it appropriate to only refer to a few of them which we find relevant and necessary. On the basis of our assessment of the respective submissions, two principal contentions emerge for determination:
i. Whether a plaint can be rejected against some of the Defendants; and
ii. Whether the plaint does not disclose cause of action against Defendant Nos. 4 to 6, thereby warranting rejection against them in terms of Order VII Rule 11(a) of the Code.
10. Learned Senior Counsel Shri Kamdar for Respondent Nos. 4 to 6 by placing reliance on the decision in Church of Christ Charitable Trust and Education Charitable Society v. Ponniamman Educational Trust , submitted that prior to the decision in Madhav Aggrawal's case (supra), the Supreme Court had ruled that a plaint as a whole can be rejected against some of the defendants in terms of Order VII Rule 11 of the Code. He submitted that the decision in the case of Church of Christ (supra), delivered by a co-equal bench, being prior to the decision in Madhav Aggrawal's case (supra) would govern the field. In support of the aforesaid contention, he relied on the decision of the Supreme Court in the case of Sundeep Kumar Bafna v. State of Maharashtra4.
11. We have gone through the decision in the case of Church of Christ (supra) rendered by the two Hon'ble Judges of the Supreme Court wherein, it is ruled that a plaint as a whole can be rejected against some of the defendants. The latter decision in Madhav Aggrawal's case (supra) was also rendered by two Hon'ble Judges of the Supreme Court, and therein the earlier decision in the case of Church of Christ (supra) was not considered. In this context, we have gone through the decision in the case of Sundeep Kummar Bafna (supra) wherein the Supreme Court has observed that the decision rendered by a co-equal bench or larger bench, earlier in time, would prevail. Relevant observations in this regard, are as follows:—
“17. The Constitution Bench in Union of India v. Raghubir Singh, (1989) 2 SCC 754 has come to the conclusion extracted below : (SC pp 777-78, para 27)
“27……….It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.”
“19. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”
12. In view of the foregoing settled position, we are of the view that the earlier decision rendered by the Supreme Court in the case of Church of Christ (supra) needs to be followed which has laid down that the plaint as a whole can be rejected against some of the defendants. The Learned Single Judge was therefore correct in holding that there is no legal embargo on rejecting the plaint as a whole against some of the defendants, and we also do hold accordingly.
36. In conclusion, we hold that a plaint can be rejected as a whole against some of the defendants. We further hold that the Plaint in the present Suit discloses sufficient cause of action against Defendant Nos. 4 to 6 in context of the Plaintiff's alternate claim for refund of earnest amount. The Learned Single Judge ought to have considered the matter as a whole and ought not to have allowed the Notice of Motion. We accordingly set aside the Impugned Order dated 14.01.2019 passed in Notice of Motion No. 2515/16 and hereby dismiss the Notice of Motion.
8.10. By relying on Sheela Ram Vidhani case, he submits that there is no legal embargo on rejection of a plaint in its entirety insofar as certain defendants are concerned. He submits that where the plaint fails to disclose a cause of action against particular defendants, or where the claim against such defendants is otherwise barred by law, the Court is empowered to reject the plaint as against those defendants while permitting the suit to proceed against the remaining defendants.
8.11. Learned counsel further submits that the principle enunciated in Sheela Ram Vidhani lends support to the contention that the power under Order VII Rule 11 CPC is not required to be exercised in an all-or-nothing manner and that, in an appropriate case, the Court may reject the plaint in respect of a distinct and severable claim, property or defendant, if the requirements of Rule 11 are otherwise satisfied.
8.12. It is therefore contended that the order dated 15.07.2024 does not suffer from any error apparent on the face of the record warranting review.
8.13. His submission is also that the said decision in Sheela Ram Vidhani was taken in appeal before the Hon'ble Apex Court in SLP No. 15635 of 2021, which was dismissed in limine, thereby upholding the reasoning of the Hon'ble Bombay High Court. The order passed by the Hon'ble Supreme Court is extracted hereunder for easy reference:
“ We do not find any good ground to interfere with the impugned judgment and order passed by the High Court. The special leave petition is dismissed.
Pending applications(s) shall stand disposed of.”
8.14. He relies upon the decision of the Hon'ble Apex Court in Sundeep Kumar Bafna -v- State of Maharashtra8, more particularly paragraph 19 which is reproduced hereunder for easy reference:
19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam if any provision in a statute, rule or regulation was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.
8.15. By relying on Sundeep Kumar Bafna, his submission is that where there are two irreconcilable decisions rendered by co-equal Benches of the Hon'ble Supreme Court, the earlier decision would prevail and the subsequent contrary view would have to be regarded as having been rendered per incuriam. He therefore contends that, in the event of any inconsistency between the decisions relied upon by the review petitioner and those relied upon by the respondents, this Court is required to follow the earlier decision in point of time.
8.16. On that ground he submits that Ponniamman Educational Trust judgment having been delivered on 3.07.2012, the decision in Karan Singh being delivered on 15.10.2025 and BS Lalitha being delivered on 15.05.2026, it is the decision in Ponniamman Educational Trust, which would have to be applied. In Ponniamman Education Trust, the court categorically held that a plaint can be rejected in respect of one of the defendants.
8.17. It is further submitted that it is not in every case involving limitation that evidence is required to be adduced. According to learned counsel, where the bar of limitation is apparent on the face of the plaint and can be determined on the basis of admitted facts and pleadings alone, the Court can and ought to exercise its jurisdiction under Order VII Rule 11 CPC to reject the plaint at the threshold, so as to avoid unnecessary and protracted litigation.
8.18. Learned counsel therefore contends that, in the present case, the challenge to the sale deed having been laid several years after its execution, the suit insofar as Item No.1 of the schedule property is concerned is ex facie barred by limitation and the order under review does not warrant any interference.
8.19. On the above grounds, he submits that the order passed by this Court on 15.07.2024, even if the decisions now placed on record are considered, does not suffer from any legal infirmity requiring this Court to exercise review jurisdiction to correct any error since there is no error in the said judgment.
9. Heard Sri.S.Y.Shivalli, learned counsel for the petitioners, Sri.Pawan Shyam for Sri.Dhananjay.K.V, learned counsel for respondent No.1. Perused papers.
10. The points that would arise for determination are:
i. Whether the order dated 15.07.2024 passed in C.R.P. No.4 of 2024 suffers from any error apparent on the face of the record warranting interference in exercise of the review jurisdiction under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908?
ii. Whether, in exercise of powers under Order VII Rule 11 of the Code of Civil Procedure, a plaint can be rejected insofar as a distinct and severable claim, property or defendant is concerned, while permitting the suit to proceed in respect of the remaining claims, properties or defendants?
iii. Whether the challenge to the sale deed dated 31.07.1991 in respect of Item No.1 of the suit schedule property is ex facie barred by limitation and, consequently, liable to be rejected under Order VII Rule 11(d) CPC?
iv. What order?
11. This court answers the above points as under:
12. Answer to Points No. (i) and (ii): Whether the order dated 15.07.2024 passed in C.R.P. No.4 of 2024 suffers from any error apparent on the face of the record warranting interference in exercise of the review jurisdiction under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908?
and
Whether, in exercise of powers under Order VII Rule 11 of the Code of Civil Procedure, a plaint can be rejected insofar as a distinct and severable claim, property or defendant is concerned, while permitting the suit to proceed in respect of the remaining claims, properties or defendants?
12.1. Sri.S.Y.Shivalli, learned counsel for the review petitioner submitted that there is no provision for rejection of the plaint in part; the plaint has to be rejected in toto or not at all. By relying on the decision of the Hon’ble Lahore High Court in Maqsud Ahmed1 (para 4), it is contended that the Civil Procedure Code, 1908 does not contemplate rejection of the plaint in part and therefore, this Court could not have directed rejection of the plaint insofar as a particular property or defendant is concerned and ought to have permitted the suit to proceed.
12.2. By relying on the decision of the Hon’ble Delhi High court in Madhu Bhargav2 (para 8), which in turn relied upon the decision of the Hon’ble Apex Court in Sejal Glass Ltd.6 (para 4), the submission made is that if the plaint survives against certain defendants and or properties, Order 7 Rule 11 will have no application at all and the suit as a whole must then proceed to trial.
12.3. By relying on the decision of Hon’ble Apex Court in Karan Singh3, it is contended that the question of limitation is ordinarily a mixed question of fact and law and therefore, cannot be summarily adjudicated while considering an application under Order 7 Rule 11 of CPC. Whether the sale deed that had been executed in the year 1991 was in the knowledge of the petitioners or not requires trial to be held.
12.4. By relying on the decision of Hon’ble Apex Court in B.S.Lalitha4 (paras 28 and 57), which in turn relied on the decision of Hon’ble Apex Court in Ponniamman Educational Trust5, it was contended that it is only when the suit was palpably frivolous or vexatious or does not disclose a cause of action whatsoever, that a plaint could be rejected as a whole.
12.5. Sri. Pawan Shyam, learned counsel for the respondent would, however, contend that this Court has rejected the plaint in its entirety insofar as item No.1 of the suit schedule property is concerned, which corresponds to prayer (b) in the suit. The sale deed having been executed on 31.07.1991 and the suit having been initiated in the year 2012, the challenge to the said alienation is barred by limitation inasmuch as the suit is filed after 21 years of the execution of the sale deed. His submission is that the purport of Rule 11 of Order 7 is to ensure that the defendant will not be compelled to undergo frivolous trial. Insofar as defendant No.2 is concerned, she is a bona fide purchaser for value vide registered sale deed executed on 31.07.1991, which could not have been brought into question in the year 2012, being exfacie barred by limitation.
12.6. He relies upon the decision of the Hon’ble Apex Court in Ponniamman Educational Trust5 (para 30), to contend that the Hon’ble Apex Court has categorically held that the learned Single Judge of the High Court was correct, in the absence of any cause of action shown as against defendant No.1 the suit may not be proceeded either for specific performance or for recovery of money advanced and has rightly rejected the plaint as against defendant No.1. On that basis, he submits that where no cause of action is disclosed against a particular defendant, the suit cannot be permitted to proceed against such defendant. The Hon’ble Apex Court set aside the order of the Division Bench and confirmed the order of the learned Single Judge by holding that the Court would be justified in exercising power under Order 7 Rule 11 to reject the plaint to the extent that the claim is barred by law insofar as the particular defendant is concerned.
12.7. Insofar as Sejal Glass Ltd.6 is concerned, he submits that the said suit was for a money decree with further interest, both future and pendente lite, against the defendant jointly and severally and the Hon’ble Delhi High Court held that the plaint is to be bifurcated if it discloses no cause of action against the directors, i.e., defendant Nos.2 to 4, but the suit would continue against defendant No.1-company. He submits that the facts in Sejal Glass Ltd (paras 1, 2 and 9), were completely different. The relief which had been sought for was for a money decree against the defendants jointly and severally and in that background, the Hon’ble Apex Court came to a conclusion that it is the provision of order 16 Rule 6 of CPC which would apply where an application could have been made by the Directors to strike out pleadings on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the court and on that basis, the relief sought for not being capable of bifurcating, the order passed by the Hon’ble Delhi High Court was set-aside and the entire suit was directed to be proceeded with.
12.8. His submission is that in the present case, the categorical bifurcation of pleadings and reliefs sought for itself, in regard to the sale deed executed on 31.07.1991 by defendant No.1 in favour of defendant No.2, not binding on the plaintiff, is exfacie barred by limitation; there is no bifurcation of the prayer that this Court has resorted to. Hence, the decision in Sejal Glass Ltd.6, is not applicable to the present case.
12.9. He relied on the decision of the Hon’ble Bombay High Court in Sheela Ram Vidhani7 (paras 8, 10, 11, 12 and 34) to contend that a plaint can be rejected as whole against some of the defendants while formulating the following questions:
i) Whether a plaint can be rejected against some of the defendants?
ii) Whether the plaint does not disclose cause of action against the defendants No.4 to 6 thereby warranting rejection against them in terms of Order 7 Rule 11(a) of the Code?
12.10. The Hon’ble Bombay High Court had considered the decision in Ponniamman Educational Trust5 wherein the Hon’ble Apex Court has held that the plaint as a whole can be rejected against some of the defendants. It is the earlier decision of the Hon’ble Apex Court in Ponniamman Educational Trust5 which is required to be followed despite there having been subsequent judgments in Madhu Agarwal2 holding to the contra and on that basis, the Hon’ble Bombay High Court came to the conclusion that plaint can be rejected as a whole against some of the defendants and the plaint in the suit discloses sufficient cause of action against defendants No.4 to 6 in context of the plaintiff’s alternative claim for refund of ernest money and on that basis, he submits that subsequent decision in Madhu Agarwal2 relied upon by the petitioner, even in Sejal Glass Ltd. [(2018) 11 SCC 780] , Karan Singh6, B.S.Lalitha4, would not be applicable. He further submits that those decisions are per incuriam. In the above background, what has to be considered by this Court is which decision would be applicable.
12.11. The decision of the Hon’ble Apex Court in Ponniamman Education Trust5 was delivered on 3.07.2012, the decision in Karan singh6 was delivered on 15.10.2025, the decision in B.S.Lalitha4 was delivered on 15.05.2026, the decision in Sejal Glass Ltd.6, was delivered on 21.08.2017; thus, the earliest decision on rejection of the plaint in part is that in Ponniamman Education Trust5. The Hon’ble Apex Court in Ponniamman Education Trust5 (para 9) had formulated the following points for consideration:
9. The points for consideration in this appeal are:
(a) Whether the learned Single Judge of the High Court was justified in ordering rejection of the plaint insofar as the first defendant (the appellant herein) in concerned? And
(b) Whether the Division Bench of the High Court was right in reversing the said decision.
12.12. The Hon’ble apex Court held that the learned Single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against defendant No.1, the suit cannot be proceeded either for specific performance or for recovery of money advanced, which according to the plaintiff was given to defendant No.2 in the suit and has rightly rejected the plaint against defendant No.1 and set aside the order passed by the Division Bench and restored the order passed by the learned Single Judge. Thus, it is clear from the dicta laid down by the Hon’ble Apex Court for the first time in Ponniamman Educational Trust5 case and there being no other earlier decision to the contra placed by the counsels on record, it is the decision in Ponniamman Educational Trust5 case which would hold the field requiring the plaint to be rejected in part insofar as defendant No.2 is concerned as regards prayer (b) is concerned. In a similar manner as held by the Hon’ble Bombay High Court in Sheela Ram Vidhani7 by considering that the earlier Judgment in Ponniamman Educational Trust5 case would be applicable irrespective of the decision in Madhav Prasad Agarwal2 case.
12.13. In the above background, this Court answers point No.1 by holding that the order dated 15.07.2024 passed in Civil Revision petition No.4/2024 does not suffer from any error apparent on face of the record warranting interference in exercise of review jurisdiction under Section 114 r/w Order 47 Rule 1 of CPC, despite several additional arguments which have been advanced by the petitioner and the additional citations which have been relied upon in the present proceedings.
12.14. This court answers point No.2 by holding that in exercise of powers under Order 7 rule 11 of CPC, a plaint can be rejected insofar as the distinct and severable claim, property or defendant is concerned while permitting the suit to proceed in respect of the remaining claims or properties in view of the decision of the Hon’ble Apex Court in Ponniamman Educational Trust case.
13. Answer to Point No. (iii): Whether the challenge to the sale deed dated 31.07.1991 in respect of Item No.1 of the suit schedule property is ex facie barred by limitation and, consequently, liable to be rejected under Order VII Rule 11(d) CPC?
13.1. Sri.S.Y.Shivalli, learned counsel for the petitioner has contended that limitation is a mixed question of fact and law and therefore, trial is required to be held to ascertain whether the suit is exfacie barred by limitation.
13.2. The contention of Sri.Pawan Shyam, learned counsel for respondent is that when exfacie the prayers sought for are barred by limitation, the courts while considering the application under Order 7 rule 11 ought to exercise its powers and nip the palpably false and frivolous suit at the bud by relying on T. Arivandandam -v-T.V. Satyapal [(1977) 4 SCC 467] [(1977) 4 SCC 467] case (para 5).
13.3. There is no dispute that a registered sale deed was executed on 31.07.1991 in favour of respondent No.2 in respect of item No.1 suit schedule property. It is also not in dispute that respondent No.2 is a third party to the family and valuable consideration has been paid under the said sale deed. The only averment which has been made in the plaint is that the plaintiffs and defendant No.1 are living jointly. The suit schedule properties are in joint possession and enjoyment of the plaintiffs and defendant No.1, and there is no partition of the suit schedule property. A stray averment has been made that item No.1 of the suit schedule property has been alienated by defendant No.1 in favour of defendant No.2, which is not binding on the plaintiff.
13.4. The cause of action has been attributed to 2.03.2012 when the plaintiff had convened a panchayat demanding partition and allotment of share to the plaintiff. There is no averment which has been made in the plaint indicating as to when the plaintiff came to know of the sale deed being executed. The sale being vide a registered document, there is constructive notice to one and all. The sale deed having been executed on 31.07.1991, the cause of action is attributed to 2.03.2012, and the plaint has been filed in the year 2012. The plaintiff No.1, on the date of filing of the suit, was 38 years of age, plaintiff No.2 was 32 years of age, plaintiff No.3 was 30 years of age, plaintiff No.4 was 28 years of age and plaintiff No.5 was 26 years of age. Thus, this court had held that as on the date of filing of the suit the period of three years subsequent to them attaining majority had already elapsed and as such the suit could not have been filed after such a long period of time. Even if they were minors as on the date of the sale, it was required that the suit be filed within a period of three years from them attaining majority, which has also not been done.
13.5. The sale deed having been executed in the year 1991, suit having been filed in the year 2012, is exfacie barred by limitation insofar as item No.1 of suit schedule property is concerned with regard to defendant No.2. The suit would necessarily continue as regards the remaining properties as regards prayer No.(i) for partition is concerned. When exfacie plaint is barred by limitation, as held by Hon’ble Apex Court in Aravindam9 case, it would be required for this Court to nip the false and frivolous case in the bud, which, ex facie, in the present case, the plaint having been filed after 21 years of the execution of the sale deed in favour of defendant No.2.
13.6. Hence, this Court answers point No.3 by holding that the challenge to a sale deed dated 31.07.1991 in respect of item No.1 suit schedule properties is exfacie barred by limitation and consequently liable to be rejected under Order 7 rule 11 of CPC.
14. Answer to Point No. (iv): What order?
14.1. For all the aforementioned reasons, though most of them were considered in the judgment dated 15.07.2024, even after considering the additional arguments and the additional citations which have been placed on record by the petitioner, this court does not come to a different conclusion than that arrived at on 15.07.2024.
14.2. There is no ground made out for review of the aforesaid order having come to a conclusion that a plaint can be rejected in part against a defendant or against a particular property or against a defendant with respect to a particular property, the above Review Petition stands dismissed.
