Sanjay vs Ajit Singh Bajaj

Najmi Waziri, J.�This order shall dispose off the 8 petitions under section 115 of the Code of Civil Procedure, 1908 ("Code"), which arises from an order dated 27.11.2012 whereby the petitioner''s application under Order 7 Rule 11 of the CPC was dismissed. The ground for dismissal of the application was twofold:

Firstly, the impugned order held that at the time of ascertaining the plaint assailed under Order VII rule 11, the Court is not to consider whether the plaint is based on a cause of action, but is required to consider whether the averments of the plaint discloses a cause of action. It observed that once the plaint discloses a cause of action, the veracity whether the averment is correct or incorrect is an issue which would be decided after going into trial. It held under Order 7 Rule 11 CPC results in non suiting the plaintiff it cannot be lightly ordered and the Court ought to exercise due caution in this regard.

Secondly, the impugned order concluded the objection taken by the application as to the suit being barred by limitation was a mixed question of fact and law and ought to rightly be considered after trial. The objection taken in the application was that the claim of the plaintiff that the suit was filed on 1.8.2011 but was inadvertently marked on the plaint by the Filing Section as having been filed on 2.8.2011 was baseless. In arriving at its conclusion that the issue raises a mixed question of fact and law, the trial court considered the defendant''s arguments and the precedents they wished to rely upon as under:-

"5. Counsel for the defendant has relied upon the following judgment:

(i) Saleem Bhai and Others Vs. State of Maharashtra and Others,

(ii) Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others,

(iii) Popat and Kotecha Property Vs. State Bank of India Staff Association,

(iv) C. Natrajan Vs. Ashim Bai and Another,

(v) Atul Rawal T/A Navin Polycon Vs. S.B. Equipments,

(vi) Panchoo and Another Vs. Ram Sunder and Another,

(vii) Susila Dei and Others Vs. Sridhar Rautray and Others, .

The plaintiff had relied upon a case titled Gunian Khanna & Anr. (Ms.) v. Mr. Arunabha Maitra 2010 IV AD (Delhi) 258 to contend that where there are mixed questions of fact and law, it cannot be decided without leading evidence. The Trial Court also relied upon the dictum in M.V. "Sea Success I" Vs. Liverpool and London Steamship Protection and Indemnity Association Ltd. and Another, in support of its conclusion that the correctness and the averments in the plaint is not to be seen at the time of adjudication of an application under Order 7 Rule 11 of the Code. The Trial Court further relied upon on D. Ramachandran Vs. R.V. Janakiraman and Others, which held that where triable issues have arisen, the Court cannot dissect the pleadings into several parts and consider whether each of them disclose a cause of action, instead the entire plaint ought to be considered in its entirety. The impugned order thus concluded, that what is to be considered at the time of disposing off an application under Order 7 Rule 11 Code is merely the averments in the plaint irrespective of the contents of the written statement. The Trial Court also relied upon the judgment of the Supreme Court in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, .

The learned counsel for the petitioner has argued that the impugned order suffers from material irregularity: the suit was barred by section 33 and 42 of the Delhi Land Reforms Act, 1954, therefore the court lacked jurisdiction. Since the objective of the agreement dated 3.5.2008 was the unlawful illegal sale and transfer such agreement would be void ab initio under section 23 of the Indian Contract Act. He contends that the case is barred by limitation under section 24 of the Schedule to the Limitation Act; it was also hit by the limitation prescribed under Articles 27, 47 and 55 of the said Act. Therefore, it was not maintainable and ought to have been rejected; that by not rejecting it, the Court has exercised jurisdiction not vested in it.

Counsel also relied upon the same judgments as have been mentioned herein above.

This Court is of the view that the above arguments of counsel for the parties will have to be appreciated in the context of the limited jurisdiction of this Court under section 115 of the Code of Civil Procedure, which provides only 3 grounds for interference by the High Court namely, (a) where the subordinate court has appears to have exercised jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

The petitioner contends that the impugned order suffers from material irregularity and patent illegality since it could be ascertained from the Court''s own record that the suit was barred by limitation, and further, on a bare perusal of Sections 33, 42 of Delhi Reforms Act, it is apparent that the suit ought to have been rejected on the ground of lack of jurisdiction.

The Trial Court has considered both objections in the impugned order. It has clearly reasoned that both these objections are mixed questions of facts, which could be decided after a trial. It is not - indeed it cannot be - the contention of the petitioner herein that the issues are pure questions of law de hors the facts of the case. It cannot by any stretch of imagination be held that the question of: (i) whether a document - which is the basis of the suit - is illegal in view of the Delhi Land Reforms Act, and (ii) whether the suit was filed on 01.08.2011 or on 02.08.2011 are only questions of law. The latter question is ex facie an issue of fact.

Given the same, the impugned order, which rejects the application under Order VII Rule 11 and relegates the party to trial on the issues raised in the application, is not one that warrants interference under section 115 of the Code. The Supreme Court, in Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, held that the Code of Civil Procedure, 1908, does not confer jurisdiction upon a Court to try a mixed question of fact and law as a preliminary issue. It further held, relying on Balsaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors., [(2006) 5 SCC 658] that unless it is apparent from a reading of the plaint that the Suit will be barred by limitation, the plaint cannot be rejected under Order VII rule 11.

This Court finds no reason to interfere with the impugned order. The petition is without merit and is accordingly dismissed.