Neutral Citation No. ( 2025:HHC:14208 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (OS)No. 17 of 2024 Reserved on 20.03.2025 Pronounced on: 16.05.2025 M/s Ashirwad Developers and Promoters .....Appellant Vs. Ramji Dass and others ...Respondents Coram: The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? For the Appellant : Mr. Ajay Sharma, Senior Advocate with Ms. Kavita Kajal, Advocate. For the respondents: Mr. R.K. Bawa, Senior Advocate with Mr. Jeevesh Sharma, Advocate, for respondent No.1. G.S. Sandhawalia, Chief Justice. The present appeal has been filed challenging the order of the learned Single Judge whereby he has dismissed the application under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as “CPC” for short) filed by the 2 appellant/defendant No.12 in Civil Suit No. 33 of 2023, on 25.06.2024. 2. The learned Single Judge, while dismissing the application, which arose out of the said order, noticed that the plaintiff Ramji Dass had filed a suit for specific performance of an agreement/ memorandum of understanding dated 30.09.2018, executed between the parties and defendants No. 1 to 11 had executed a registered partnership deed dated 22.10.2005 which constituted a partnership firm, namely, M/s Ashirwad Developers and Promoters, the present appellant herein. The said partnership deed had been registered in the office of the Deputy Registrar of the Firm at Solan, H.P. on 21.12.2005 and accordingly, the partners had obtained the certificate of registration dated 19.01.2006 bearing registration No.125 with Himachal Pradesh Housing and Urban Development Authority and the Town and Country Planner had issued ‘No Objection Certificate’ in favour of the firm for permitting it to purchase the land under 3 Section 118 of the HP Tenancy and Land Reforms Act, 1972. The land measuring 72-13 bighas situated in Mauza Katha, Tehsil Nalagarh District Solan, HP was accordingly purchased and vide letter dated 30.10.2007, permission to purchase the land had been grated in the year 2008. The memorandum of understanding thus had been reached between the plaintiff and three other persons and the shares of defendants Nos. 1 to 11 were purchased for Rs.8,30,00,000/- which was to be paid in three phases. The plaintiff was also to pay a sum of Rs.1,54,00,000/- towards deficiency in the Court fee, i.e, sale deeds dated 26.04.2008 and 28.04.2008, for release which were impounded due to the said deficiency of the stamp duty. The remaining amount of Rs.6,76,00,000/- was to be paid in three phases as per the agreement and a sum of Rs.1,10,00,000/- was to be paid till 30.09.2018 to defendants No. 1 to 11. Defendants No. 2 to 4, 6, 7, 9 and 11 surrendered and transferred 64% share in favour of the plaintiff. An 4 amount of Rs.1,90,00,000/- was paid until December, 2019 by way of several bank drafts and the plaintiff further paid Rs.1,00,00,000/-, on different dates and thus an amount of Rs.4,00,00,000/- was paid to defendants No. 1 to 11 till December, 2019. 3. Three other individuals, namely, Rajesh Kumar Jain, Rajesh Kumar Goel and Rajesh Jain paid Rs.33,42,500/- and remaining amount of Rs.3,66,57,500/- was paid by the plaintiff alone. The sale deeds were also got released by the plaintiff and the amount of deficiency of Court fee was also paid by the plaintiff and mutation of the land was attested in favour of defendant No. 12/present appellant. Post dated cheques were also issued to the tune of Rs.4,30,00,000/- in favour of the partners of the firm by the defendant which were not encashed by the defendants. Three other individuals filed suit for recovery of Rs.45,44,800/- which was compromised as withdrawn behind the back of the plaintiff as he was not party to the suit. Resultantly, he prayed for 5 induction as partner of the firm and steps were to be taken for reconstitution of the partnership firm and that defendants No. 2 to 4, 6, 7, 9 and 11 having a 65% share in the Firm had retired after the settlement of their accounts and plaintiff and three other persons were to be added as new partners in the partnership Deed. The defendants No. 1,5, 8 and 10 would have 36% share, while the remaining 64% would be held by the plaintiff and other persons. It has been further averred that the possession of the land was also delivered to the plaintiff but defendants No. 1 to 11 threatened to change its nature and raised construction over the suit land and dispossessed the plaintiff from the said land and filed civil suit, seeking permanent prohibitory injunction which was subsequently withdrawn. 4. While rejecting the application for rejection of the plaint, filed under Order 7 Rule 11 of CPC, the learned Single Judge noticed that application was filed by defendants No. 2 and 12 seeking rejection of the 6 plaint. Thus, the present appeal arises out of the rejection order in OMP (M) No.596 of 2023, filed by defendants No. 2 and 12. 5. It is pertinent to notice that defendant No. 2 had earlier joined hands with another defendant No. 6 and challenged the rejection order of the same date of 25.6.2024 which had also decided OMP (M) No. 636 of 2023 filed by defendants No. 1,3 to 11. The said order has already been upheld by the co-ordinate Bench in FAO (OS) No.6 of 2024. The Co-ordinate Bench, while noticing this fact on 12.11.2024 asked the Counsel for the appellant to justify the maintainability of the appeal and faced with the situation, learned Senior Counsel for the appellant has submitted that defendant No. 12 has separate right to challenge the said order on different grounds and also that the learned Single Judge failed to consider the said issue and the fact that the suit was barred by limitation having been filed on 04.05.2023. The limitation had expired in the year 2022, as the last payment as per 7 the memorandum was made on 25.09.2019. Resultantly, reliance was placed on the judgment of the this Court in Indresh Dhiman vs. Hindustan Times and others 2019 (3) Civil Court Cases 214, of a single Judge which was a case of defamation and the limitation being of one year for damages from the date of publication would have no applicability. 6. Earlier, Suit bearing No. 106/2022 had been filed in the Court of Civil Judge, Nalagarh for permanent prohibitory injunction and the same had been dismissed as withdrawn on 22.03.2023 and the present appellant was not party to the earlier litigation. Resultantly, reliance on the judgment of Apex Court in Vurimi Pullarao vs. Vemari Vyankata Radharani (2020) 14 SCC 110 to contend that no leave of the Court had been taken and therefore, subsequent suit is barred would be of no relevance as the said Court had no jurisdiction to entertain the present suit. Reliance has also been placed upon the judgment of the Apex Court in 8 Lakhbir Singh vs. Arun Kumar Khanna AIR 2015 (NOC) 165 (Del.) to put forward the said proposition that the suit for specific performance of agreement to sell was barred since the suit for permanent prohibitory injunction had been filed would also have no bearing on the facts of the case in hand. While placing reliance upon the judgment in Virgo Industries (Eng.) Pvt. Ltd. vs. Venturetech Solutions Pvt. Ltd. (2013) 1 SCC 625, it was held that multiplicity of litigation cannot be resorted to on the same cause of action but the second round of litigation was launched after 4 years in the said case, whereas the permanent injunction suit being withdrawn, the present suit was filed immediately in a Court having jurisdiction. Similarly, reliance was placed on N.Ravindran v. V.Ramachandran AIR 2017 Madras 136 that once there was reference in the plaint itself regarding the filing of the suit, the Court was not powerless to examine the averments with reference to the plaintiff’s documents and there was 9 permission to claim the relief of specific performance on an earlier occasion. Therefore, the second suit was held not to be maintainable, while holding that the issue of limitation is a mixed question of facts and law, and both the litigation were in Courts of competent jurisdiction. 7. Mr. R.K. Bawa, learned Senior Counsel, on the other hand, rebutted the said argument that Article 54 of the Limitation Act, 1963 as such prescribes the period of limitation of three years, if there is a date fixed for the performance or if no such date is fixed when the plaintiff has notice that the performance has been refused. It is accordingly contended that the dispute was only of 36% shares on the partnership and therefore, there cannot be any bar as the suit was filed rightly within limitation on 04.05.2023, when the defendants had been approached in August, 2022 with the request to pay balance amount of consideration. Thereafter in October and November, 2022, they had threatened to 10 change the nature and character of the land in question. Lastly, when they had illegally started plotting of the land in January, 2023 and there was refusal to perform the agreement dated 30.09.2018, the cause of action then arose. 8. Accordingly, he referred to Section 2(a) of the Indian Partnership Act, 1932, regarding the act of a firm with reference to act or omission by all partners to contend that once the earlier appeal had been dismissed and defendant No. 2 was also a party in the said appeal, the principle of res judicata would apply Accordingly, he placed reliance on Mathura Prasad Bajoo Jaiswal and others vs. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613, in support of his argument. Similarly, reliance was placed on the judgment in Pondicherry Khadi & Village Industries Board vs. P. Kulothangan and another (2004) 1 SCC 68 that the earlier Court ought to have competency to adjudicate upon the dispute and whether it was the same subject matter 11 as such to contend that it was only a suit for permanent prohibitory injunction. Similarly, reliance was placed on M. Nagabhushana vs. State of Karnataka and others (2011) 3 SCC 408 that once co-defendant No. 2 had unsuccessfully challenged the said common order and being partners of the present appellant, the present appeal was only an abuse of the process of the Court and therefore, exemplary cost should be imposed. 9. While falling back on Kaushik Cooperative Building Society vs. N. Parvathamma and others (2017) 13 SCC 138, the principle of public policy to achieve the finality of litigation as such was pressed that the defendants as such could not play with the Court while challenging a common order. It was accordingly contended that plaint has not been placed on record and therefore, cause of action for Solan Court could not be assessed and it is a mixed question of facts and law that Court at Solan did not have jurisdiction and neither the 12 parties were same as the present appellant was never defendant in the earlier suit. Reasoning given by the learned Single Judge. 10. While keeping in view the principle of exercise of jurisdiction and keeping in mind the judgments of the Apex Court in Eldeco Housing & Industries Ltd. vs. Ashok Vidyarthi 2023 SCC OnLine SC 1612, it was held that the rejection is normally to be done to put an end to the sham litigation and there has to be a cause of action and the power conferred on the Court to terminate civil action under the provisions of Order 7 Rule 11 are drastic one and have to be strictly adhered to. 11. While addressing the issue of the objection raised by defendants No. 1, 3 to 11 that jurisdiction was barred and the commercial Court could have jurisdiction, the same was rebutted by falling back upon the judgment of the Apex Court in Vodafone International Holdings BV vs. Union of India (2012) 6 SCC 613 that it was not a dispute between 13 the company and the share holders’ agreement would not apply. Similarly, while placing reliance upon the judgment in P. Siva Mohan Reddy Vs. K.R. K. Reddy 2023 SCC Online TS 1337, a distinction was made from the Joint Venture Agreements to the agreements of the partnership agreements on the ground that it was only a one venture whereas the partnership was a larger concept. Resultantly, the objection that it was a commercial dispute, was repelled while also placing reliance upon the judgment of the Apex Court in Ambalal Sarabhai Enterprises Ltd. vs. K.S. Infraspace LLP (2020) 15 SCC 585 to come to the conclusion that the definition of the Commercial Courts has to be strictly construed. The dispute being of partnership as such and the right inter se the specific performance of the memorandum of understanding was then gone into and the fact that earlier suit was only an injunction suit and the arguments put forth were rejected on the ground that 14 the pleadings of the earlier suit had even not been filed, therefore, the burden as such to establish the same was on the applicant having taken such objection. 12. The issue of limitation has also been dealt with by placing reliance in Hardesh Ores (P) Ltd. Vs Hede and Co. (2007) 5 SCC 614 that the sum and substance has to be looked into and the test was to see the full averment in the plaint whether a decree could be passed while also placing reliance in Nusli Neville Wadia vs. Ivory Properties and others (2020) 6 SCC 557 and Sayed Mohd. Salie Labbai Vs. Mohd. Hanifa (1976) 4 SCC 780, and is a mixed question of facts and law. 13. Thus, while placing reliance on the averments, as noticed in the plaint, as to the cause of action had accrued only in November, 2022 when the illegal plotting of the land had started, the application under Order 7 Rule 11 CPC was held not liable to be allowed and the plaint could not be rejected and the 15 case was put up for admission and denial of the documents. 14. The factual matrix having been clarified as above and keeping in view the nature of the dispute, we are of the considered opinion that there is no much merit in the appeal firstly and the same is liable to be dismissed on account of the fact that defendants are a close set of persons. Defendant No.12, the present appellant which is a partnership firm is sued through Roshan Lal Jindal who himself was arrayed as defendant No. 1 being son of Birkha Ram Jindal. Defendants No. 3, 4 and 5 are also sons of Birkha Ram Jindal and thus, brothers of Roshan Lal Jindal who has now filed the present appeal and has similar interest as the other partners who had been arrayed as defendants No. 2 to 11 in the suit. It is pertinent to notice that the present application for rejection of plaint was filed by the appellant and defendant No.2, namely, Pradeep Aggarwal, son of Om Prakash and the later along with his father defendant No. 6 Om 16 Prakash Aggarwal had preferred to file FAO (OS) 6 of 2024 and in sum and substance challenged the decision of the learned Single Judge passed in OMP (M) No. 636 of 2023 and impliedly also the present OMP (M) No. 596 of 2023, having preferred the same together. The order passed by the Co-ordinate Bench while upholding the said order though on the ground whether it was a commercial dispute or not was rejected on 21.08.2024. The relevant portion reads as under: “15. It is apparent from the judgment that a joint venture is similar and closely akin to a partnership but is not a partnership. Admittedly, in the present case, the association of defendants No.1 to 11 is a partnership; hence, the same will not be covered by a Joint Venture Agreement. Further, the Joint Venture Agreement is for carrying out a single business enterprise or some specific adventure; however, in the present case, the partnership has to carry out the work of development of the property and building/construction work, which is not confined to one venture but is general in nature. Thus, the term Joint Venture Agreement will also not apply to it. 16. In the present case, as per the plaint, the property was to be purchased and was to be developed. It was laid down by Gujarat High Court in Vasu Healthcare Pvt. Ltd. Vs. Gujarat Akruti TCG Biotech Ltd. AIR 2017 Gujarat 153 that “used” must mean “actually used” or “being used” and not “likely to be used”. It was observed:- "Therefore, if the dispute falls within any of clause 2(c) the dispute can be said to be a "commercial dispute" for which the Commercial Court would have jurisdiction. It is required to be noted that before the learned Commercial Court, the 17 original plaintiff relied upon sections 2(c)(i), 2(c)(ii) and 2(c) (xx) of the Commercial Courts Act only. Learned Counsel appearing on behalf of the original plaintiff has candidly admitted and/or conceded that the case shall not fall within clause 2(c)(i); 2(c)(ii) or 2(c)(xx) of the Commercial Courts Act. It is required to be noted that before the learned Commercial Court, it was never the case on behalf of the original plaintiff that the case would fall within section 2(c) (vii) of the learned Commercial Court. Despite the above, we have considered on merits whether even considering section 2(c)(vii) of the Commercial Courts Act, the dispute between the parties can be said to be a "commercial dispute" within the definition of section 2(c) of the Commercial Courts Act or not? Considering section 2(c)(vii), "commercial dispute" means a dispute arising out of the agreements relating to immovable property used exclusively in trade or commerce. As observed hereinabove, at the time of filing of the suit and even so pleaded in the plaint, the immovable property/plots the agreements between the parties cannot be said to be agreements relating to immovable property used exclusively in trade or commerce. As per the agreement between the party after getting the plots on lease from the GIDC, the same was required to be thereafter developed by the original defendant No. 1 and after providing all infrastructural facilities and sub-plotting, the same is required to be given to other persons like the original plaintiff. It is the case on behalf of the original plaintiff that the original defendant No. 1 has failed to provide any infrastructural facilities and develop the plots and therefore, a civil suit for specific performance of the agreement has been filed. There are other alternative prayers also. Therefore, it cannot be said that the agreement is as such relating to immovable property used exclusively in trade or commerce. It is the case on behalf of the original plaintiff that as in clause (vii) of section 2(c), the phraseology used is not "actually used" or "being used" and therefore, even if at present the plot is not used and even if it is likely to be used even in future, in that case also, section 2(c)(vii) shall be applicable and therefore, the Commercial Court would have jurisdiction. The aforesaid has no substance. As per the cardinal principle of law, while interpreting a particular statute or provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are "immovable property used exclusively in trade or commerce". If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On a plain reading of the relevant clause, it is clear that the expression "used" must mean "actually used" or "being used". If the intention of the legislature was to expand the scope, in that case, the phraseology used would have been different as for example, "likely to be used" or "to be used". The word "used" denotes "actually used" and it cannot be said to be either "ready for use" "likely to be used"; or "to be used". A similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dinesh Kumar 18 Gulabchand Agrawal (Supra) and it is observed and held that the word "used" denotes "actually used" and not merely "ready for use". It is reported that SLP against the said decision has been dismissed by the Hon'ble Supreme Court." 17. This judgment was approved by the Hon’ble Supreme Court in Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP, (2020) 15 SCC 585: 2019 SCC OnLine SC 1311, wherein it was observed:- “12. Though we are informed that the said decision is assailed before this Court in a special leave petition we are inclined to agree with the view expressed therein. This is for the reason that this Court while examining the issue relating to exclusive land use, though in a different context has laid emphasis on the present user of the land either for agriculture or non-agriculture purposes being relevant. In that regard, the decision relied on by the learned Senior Advocate for the respondent in Federation of A.P. Chambers of Commerce & Industry v. State of A.P. [Federation of A.P. Chambers of Commerce & Industry v. State of A.P., (2000) 6 SCC 550] is noticed, wherein it is observed as under: (SCC pp. 552-53, paras 6 & 9) “6. Section 3 of the said Act speaks of “land is used for any industrial purpose”, “land is used for any commercial purpose” and “land is used for any other non-agricultural purpose”. The emphasis is on the words “is used”. For the purposes of levy of assessment on non-agricultural lands at the rate specified in the Schedule for land used for industrial purposes, therefore, there has to be a finding as a fact that the land is in fact in praesenti in use for an industrial purpose. The same would apply to a commercial purpose or any other non-agricultural purpose. *** 9. We are in no doubt whatever, therefore, that it is only land which is actually in use for an industrial purpose as defined in the said Act that can be assessed to non- agricultural assessment at the rate specified for land used for industrial purposes. The wider meaning given to the word “used” in the judgment under challenge is untenable. Having regard to the fact that the said Act is a taxing statute, no court is justified in imputing to the legislature an intention that it has not clearly expressed in the language it has employed.” (emphasis supplied) 18. The Hon’ble Supreme Court further held that the provisions of the Commercial Courts Act are to be strictly construed because if these are widely construed, every dispute which is not a commercial dispute will have to be filed before it and that 19 would defeat the very purpose of establishing the Commercial Courts. It was observed: - “13. The learned Senior Advocate for the appellant would, however, contend that a strict interpretation as in the case of taxing statutes would not be appropriate in the instant case where the issue relates to jurisdiction. In that regard, the learned Senior Advocate has referred to the Statement of Objects and Reasons with which the Commercial Courts Act, 2015 is enacted so as to provide speedy disposal of high- value commercial disputes so as to create a positive image to the investors world about the independent and responsive Indian legal system. Hence, he contends that a purposive interpretation be made. It is contended that a wider purport and meaning is to be assigned while entertaining the suit and considering the dispute to be a commercial dispute. Having taken note of the submission we feel that the very purpose for which the CC Act of 2015 has been enacted would be defeated if every other suit merely because it is filed before the Commercial Court is entertained. This is for the reason that the suits which are not actually relating to commercial dispute but being filed merely because of the high value and with the intention of seeking early disposal would only clog the system and block the way for the genuine commercial disputes which may have to be entertained by the Commercial Courts as intended by the lawmakers. In commercial disputes, as defined a special procedure is provided for a class of litigation and a strict procedure will have to be followed to entertain only that class of litigation in that jurisdiction. If the same is strictly interpreted it is not as if those excluded will be non-suited without any remedy. The excluded class of litigation will in any event be entertained in the ordinary civil courts wherein the remedy has always existed. 14. In that view it is also necessary to carefully examine and entertain only disputes which actually answer the definition “commercial disputes” as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further, the very relief sought in the suit is for the execution of the mortgage deed which is in the nature of the specific performance of the terms of the Memorandum of Understanding without reference to the nature of the use of the immovable property in trade or commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts, the High Court was justified in its conclusion arrived through the order dated 1-3-2019 [K.S. Infraspace LLP v. Ambalal Sarabhai Enterprises Ltd., 2019 SCC OnLine Guj 1926] impugned herein. The Commercial Court shall therefore return the plaint indicating a date for its presentation before the Court having jurisdiction.” 19. Therefore, the submission that the words “arising out of” are to be widely construed cannot be accepted. 20 20. Section 2(i)(xv) deals with the partnership agreement and if this term is strictly construed, it can only mean an existing partnership agreement and not a partnership agreement that is likely to be made in future. Such an interpretation will be as per the judgment of Gujarat High in Vasu Healthcare (supra), as approved by the Hon’ble Supreme Court, wherein the agreement related to immovable property used exclusively in trade or commerce was defined to mean the property being used and not likely to be used. 21. The memorandum of understanding is regarding the transfer of shares by some of the partners in favour of the plaintiff and other persons on receipt of the money. Therefore, the Memorandum of Understanding is regarding a future partnership that would come into existence after the terms and conditions of the memorandum are completed and is not covered under the partnership agreement.” 15. Thus, we are of the considered opinion that a co-defendant No.2 having got the order passed in OMP (M) No. 596 of 2023 also as such upheld, the present appeal would have to suffer the same fate of the earlier Appeal being (FAO (OS) No. 6 of 2024). Parties to the suit as such cannot be permitted to play hide and seek with the Court by filing separate applications through separate defendants who had same interest and had sought same relief by filing application for rejection of plaint by filing separate OMPs and would be bound by the earlier rejection in the present circumstances being closely related. The 21 reliance upon the judgment of the Apex Court regarding such kind of vexatious litigation in M. Nagabhushana’s case (supra) is thus well justified as there has to be a principle of constructive res judicata which is meant to prevent the abuse of process of Court. 16. The present appellant as such was initially raising the issue of jurisdiction and maintainability along with defendant No. 2, who thereafter chose to challenge the said order by filing separate appeal which has already been dismissed on merits. In such circumstances, we are of the considered opinion that though plaintiff as such cannot be put to another round of litigation as such at the hands of his co- defendants. The fundamental principle of res judicata would come into play as there has to be honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. Reference can be made to the observations made by 22 the Apex Court in M. Nagabhushana vs. State of Karnataka and others (2011) 3 SCC 408. Para 13 of the said judgment reads as under: “13.That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.” 17. Secondly, we are of the considered opinion that the power which has to be exercised under Order 7 Rule 11 CPC is an extreme power and has to be exercised with certain care and reliance can be placed upon the law laid down by the Apex Court in a three Judge Bench judgment in M/S Popat And Kotecha Property vs Ashim Kumar Dey, (2005) 3 Civil Court Cases 350. It was held in the said case that disputed questions cannot be decided at the time of considering an application under Order 7 Rule 11 CPC. In the said case, the Division Bench had interfered 23 with the order of the learned Single Judge and rejected the plaint. Resultantly, it was held that the real object of the said provision is to keep out of the Court irresponsible law suit and only if there is prima facie view that the suit is abuse of the process of the said power it has to be exercised. Resultantly, the order of the Division Bench as such was interfered with while dismissing the application and allowing the suit to continue. 18. Similar view has also been taken by the Apex Court in Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee (2012) 8 SCC 706, wherein it was held that the averments and pleadings taken in the plaint are to be examined and the cause of action has to be seen and if there is no such cause of action, the said power has to be exercised. In the said case, the Division Bench had interfered with the order of the rejection of 24 the plaint by the learned Single Judge wherein the plaint had been rejected in so far as one of the defendants. The interference was thus done that there was no cause of action against the first defendant and the suit could not proceed against him either for specific performance or for the recovery of money. In the present case the cause of action plainly arises as the plaintiff is wanting to seek performance of the MOU dated 30.09.2018 for constitution of the partnership firm having taken active steps in furtherance of his investment. 19. In Mayar (H.K.) Ltd. & Ors. Vs Owners & Parties, Vessel M.V. Fortune Express & Ors (2006) 3 SCC 100, it was held that suit as such has to be vexatious before the rejection order is passed and that if cause of action is arising which is a bundle of facts, the rejection should not be done, while placing reliance on the earlier judgment in M/S Popat and Kotecha Property (supra). Paras 10 and 11 of the said judgment reads as under: 25 “10.The aforesaid finding clearly indicates that the order of permanent stay of the suit was made by the Division Bench not because the plaint is liable to be rejected on the grounds that it falls within the parameters of Order VII Rule 11 of the Code or the suit is liable to be stayed in exercise of the powers under Section 10 of the Code or that the Court has passed an order under Order VI Rule 16 of the Code which has not been complied with. The Division Bench, in fact, has exercised the jurisdiction for stay of the suit as the plaintiffs did not disclose the forum selection clause whereby the Court at Calcutta had no jurisdiction to entertain the suit and further suppressed the fact that the claim in the suit shall be governed by the laws applicable in the Singapore Court and that plaintiffs have no case because the claim is in regard to deck cargo. 11. Under Order VII Rule 11 of the Code, the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order VII Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam vs. T.V. Satyapal and another, (1977) 4 SCC 467, this Court has held 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, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal vs. Nachhattar Singh Gill, (1982) 3 SCC 487, this Court has held that where the plaint discloses 26 no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court could not act under Order VII Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order VI Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, it was held that the basic question to be decided while dealing with an application filed by the defendant under Order VII Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai and others vs. State of Maharashtra and other (2003) 1 SCC 557, this Court has held that the trial court can exercise its powers under Order VII Rule 11 of the Code at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510, this Court has culled out the legal ambit of Rule 11 of Order VII of the Code in these words :” 20. In the present case, as noticed, a large sum of money had been allegedly received by the 27 defendants, in pursuance of the memorandum of understanding, rejection of the plaint as such by the defendants who are closely related in filing the various applications thus can only be termed as abuse of process of the Court to avoid the repayment. Therefore, we do not feel that it is one of such cases where the plaint is liable to be rejected in view of the law referred to above. It is also settled principle of law that law of limitation is a mixed question of facts and law and reliance can be placed upon Hareendran and others versus Sukumaran and others (2018) 14 SCC 187, wherein the issues of limitation and redemption were held to be wrongly decided as a preliminary issue; by the Trial Court and the appeal filed by the plaintiff was allowed. Therefore, the arguments raised that the suit was filed after a period of three years, is also without any basis as it would be matter of evidence as such regarding pleadings which have been set out in the civil suit wherein it has been specifically mentioned that the amount was to be paid 28 in three phases and there was as such a compromise inter se the parties and three persons as such had received their amount as a refund. 21. The fact of possession having been handed over and then taken back and plotting aspect and the denial as such of the performance of the agreement would thus be points which had to be adjudicated upon in the main suit as such, and recourse to Order 7 Rule 11 CPC cannot be permitted. 22. In Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) (2020) 7 SCC 366, it was held that power under Order 7 Rule 11 of CPC as such could be exercised by the Court at any stage. The rejection only could have done if there was no disclosure of cause of action and the suit was barred by law. In the absence of the same, it was accordingly argued that there was valid cause of action and the plaintiff was only seeking to enforce the memorandum as the huge amount of money out of which of Rs.3,66,57,500/- was exclusively paid by 29 the plaintiff which the defendant wanted to swallow and not stand by the memorandum as such whereby plaintiff had secured 66% shares in the firm. 23. The earlier Civil suit was thus a suit for permanent prohibitory injunction without impleading the present appellant as such as party since the controversy as such was different regarding the interference, as noticed above, of the property. There was no relief sought against the present appellant regarding the Memorandum of Understanding which could as such bar the second litigation, which is an independent cause of action. 24. The Court at Solan would have no pecuniary jurisdiction as such to try the present suit also and therefore, the earlier suit as such would not stand in the way of the plaintiffs/respondents. 25. Resultantly, keeping in view the above discussion, we are of the considered opinion that filing of different sets of appeals by the co-defendants as such would only amount to abuse of process of Court 30 and the rights of the plaintiffs as such cannot be scuttled by resorting to a short-cut method as such which has been attempted by filing separate applications by a co-defendants, who have the same interest as such. 26. As such, we do not find any plausible reason to interfere in the well reasoned order passed by the learned Single Judge. Accordingly, the appeal is dismissed along with pending applications, if any. (G.S. Sandhawallia) Chief Justice (Ranjan Sharma) Judge May 16, 2025. (cm Thakur)