Judicial time is precious and ought to be employed in the most efficient manner possible. Sham litigations are one such menace that not only waste the time of the courts, but also cause unwarranted prejudice and harm to parties arrayed as defendants in such litigations, thereby defeating justice. In order to deal with such a menace, the Code of Civil Procedure, 1908 (“CPC”), under Order VII Rule 11[1] (“O7 R 11”) provides litigants the option to pursue an independent and special remedy, empowering courts to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any grounds contained in this provision.
Recently, the Hon’ble Supreme Court of India (“SC”) in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali[2] (“Case”), while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents, discussing the intent and purpose of O7 R11, while setting out the principles in relation to the same.
A plot of agricultural land (“Land”) was sold by the Plaintiff to Respondent No. 1 (as arrayed in the suit), by executing a registered sale deed dated July 02, 2009 (“Sale Deed”). The sale consideration was paid for by Respondent No.1 by issuing 36 different cheques in favor of the Plaintiff. Having purchased the Land from the Plaintiff, Respondent No. 1 subsequently sold the Land to certain third parties being Respondent Nos. 2 and 3.
The Plaintiff, in December of 2014, more than five years after the execution of the Sale Deed, instituted a suit (“Suit”) before the Principal Civil Judge, Surat (“Trial Court”) on the grounds that the sale consideration for the Land had not been paid in its entirely by Respondent No.1 and inter alia praying that the Sale Deed be declared void, illegal and ineffective. Respondent Nos. 2 and 3 were impleaded in the Suit, as the Land had already been sold to them and was in their possession at the time of institution of the Suit.
The Respondent Nos. 2 and 3 filed an application seeking rejection of the plaint under Order VII Rule 11(a) and (d) of the CPC, contending that the Suit filed by the Plaintiff was barred by limitation and that no cause of action was made out in the plaint.
The Trial Court allowed the application and rejected the plaint at the threshold on the ground that the suit was barred by limitation. The Plaintiff filed an appeal before the Gujarat High Court (“High Court”), which in turn upheld the order of the Trial Court. Accordingly, the Plaintiff came before the SC impugning the order of the High Court.
The Object and Purpose of O7 R 11
While dealing with the appeal before it, the SC considered various precedents on the underlying object of O7 R 11. It observed that if no cause of action is disclosed in the plaint or if the suit is barred by limitation, the court would not permit protraction of the proceedings. In such a case, it would be necessary to put an end to the sham litigation, so further judicial time is not wasted. Placing reliance on Azhar Hussain v. Rajiv Gandhi[3], it opined that the entire purpose of conferment of such powers under O7 R 11 is to ensure that a litigation, which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the courts, and exercise the mind of the respondent.
The Determining Test
The SC clarified that courts, while dealing with such an application seeking rejection of a plaint, ought to determine whether the plaint discloses a cause of action by scrutinising[4] the averments in the plaint, read in conjunction with the documents relied upon. In this regard, it also clarified that while making such a determination, courts would have to disregard the pleas taken by the defendant in the written statement and application for rejection of the plaint on merit.[5] Hence, the SC clarified that while determining any application filed under O 7 R11, the courts should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even the application filed under O7 R 11.
The SC reiterated the test laid down in Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success[6], which inter alia provides that whether the plaint discloses a cause of action or not is essentially a question of fact. However, whether it does or does not must be found from the reading of the plaint itself during which the averments made in the plaint in their entirety must be held to be correct. In other words, the plaint must be construed as it stands, without addition or subtraction of words. [7]
On the Suit being barred by limitation
The SC observed that the sale was concluded upon the execution of the Sale Deed in 2009, wherein it was also recorded that Plaintiff had received 36 cheques, covering the entire consideration for the Land and that the Plaintiff had various opportunities to challenge the Sale Deed on grounds of non-receipt of full consideration. There was no explanation provided as to why the Plaintiff remained completely silent for a period of 5 and a ½ years, without even issuing a legal notice. It found that the conduct of the Plaintiff in not taking recourse to legal action for over 5 year from the execution of the Sale Deed in 2009 was demonstrative of the fact that the institution of the Suit was merely an afterthought.
While interpreting Articles 58 and 59 of the Limitation Act, 1963, the SC relied on Khatri Hotels Private Limited v. Union of India[8] to reiterate that the period of limitation will begin to run from the date when the first right to sue accrues. Accordingly, it observed that since the Suit was filed much after the expiry of three years when the first right to sue occurred, it found the Suit to be barred by limitation.
On the Plaint being manifestly vexatious and without merit
The SC found that the plea taken by the Plaintiff that it had learned of the alleged fraud only in 2014, upon receipt of the index of the Sale Deed, was wholly misconceived since the receipt of the index would not constitute the cause of action for filing of the suit. It also observed that the Plaintiff had deliberately not mentioned the date of execution and registration of the Sale Deed. Accordingly, it held the present to be a classic case where the Plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action in order to bring the suit within limitation and hence should be rejected at the threshold.
In coming to its conclusion, the SC observed that if on a meaningful reading of the plaint, it is found that the plaint is manifestly vexatious and without any merit, and does not disclose a right to sue, courts would be justified in exercising power under O7 R 11.
Through this judgment, the SC has emphasised that judicial time is precious, and that courts are duty bound to reject vexatious plaints to avoid wastage of judicial time. It has clarified that the power of the courts under O7 R 11 are mandatory in nature and may be exercised at ay stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. However, it has also clarified that the power conferred under O 7 R 11 is a drastic one and that the requirements enumerated therein should be strictly adhered to. In this case, the SC upheld the orders of the lower courts, rejecting the plaint at the threshold since it found that the institution of the Suit by the Plaintiff was clearly an abuse of the process of the court and was bereft of any merit.
Litigants may pursue the option of seeking rejection of a plaint at the threshold, if the suit fails to disclose a valid cause of action; or is barred by any law; or if the reliefs prayed for therein are defective and un-remediable, in line with the provisions of O7 R 11. However, litigants ought to be mindful that in exercising such a power, the court cannot go into the merits of the case and has to make its determination only from a scrutiny of the averments made out in the plaint, which is presumed to be true. Additionally, the courts are also required to exercise this power with restraint. Plaints providing a prima facie cause of action are not to be simply rejected at the threshold. The decision of using the option provided under 07 R 11 should therefore be taken with due consideration of the facts and circumstances.
[1] Order VII Rule 11 provides that the Court shall reject a plaint:
[2] Dahiben v. Arvindbhai Kalyanji Bhanusali 2020 SCCOnline SC 562.
[3] Azhar Hussain v. Rajiv Gandhi 1986 Supp CC 315.
[4] Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success (2004) 9 SCC 512.
[5] Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 2 SCC 137.
[6] Supra No. 4.
[7] D. Ramachandran v. R.V. Janakiraman (1999) 3 SCC 267 and Vijay Pratap Singh v. Dukh Haran Nath Singh AIR 1962 SC 941.
[8] Khatri Hotels Private Limited v. Union of India (2011) 9 SCC 126.
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