Bombay High Court Dismisses Petition Challenging Rejection of Application Under Order VII Rule 11 CPC in Suit for Specific Performance. Court Holds That Agreement to Sell Need Not Be Registered Under Maharashtra Stamp Act for Purposes of Order VII Rule 11 CPC, and That Questions of Limitation and Valuation Are Mixed Questions of Fact and Law Not Decided at Threshold.

Civil Writ Petition under Article 227 of the Constitution challenging the order rejecting application under Section 11 and Order VII Rule 11 CPC in a suit for specific performance.

Petitioner sought quashing of the trial court's order dated 8th August 2022 rejecting his application for rejection of plaint.

Petitioner contended that the plaint in the suit for specific performance was liable to be rejected because the agreement to sell was not registered under the Maharashtra Stamp Act, the suit was barred by limitation, undervalued, and barred by res judicata.

The trial court rejected the application under Order VII Rule 11 CPC on 8th August 2022, holding that the issues were mixed questions of fact and law.

Whether the trial court erred in rejecting the application under Order VII Rule 11 CPC on the ground that the agreement to sell was not registered under the Maharashtra Stamp Act? Whether the suit for specific performance was barred by limitation and could be rejected at the threshold? Whether the suit was undervalued and the court had no jurisdiction? Whether the suit was barred by res judicata?

Petitioner argued that the agreement to sell dated 26th December 2004 was not registered under the Maharashtra Stamp Act and therefore inadmissible in evidence, and the suit was liable to be rejected. Petitioner argued that the suit was barred by limitation as the agreement was executed in 2004 and the suit was filed in 2021. Petitioner argued that the suit was undervalued and the court lacked pecuniary jurisdiction. Petitioner argued that the suit was barred by res judicata in view of earlier partition suits. Respondent No.1 argued that the issues raised were mixed questions of fact and law and could not be decided under Order VII Rule 11 CPC.

The power under Order VII Rule 11 CPC is to be exercised on a demurrer, i.e., by reading the plaint as a whole without considering the defense. An unregistered agreement to sell can be received in evidence upon payment of stamp duty and penalty, and its admissibility is not a ground for rejection of plaint. Limitation, valuation, and res judicata are mixed questions of fact and law which cannot be decided at the stage of Order VII Rule 11 CPC unless the plaint is ex-facie barred.

The power under Order VII Rule 11 is to be exercised at the threshold if the plaint itself does not disclose a cause of action or is barred by law. An agreement to sell which is not registered under the Stamp Act is not admissible in evidence but can be received in evidence upon payment of duty and penalty. Limitation is a mixed question of fact and law and cannot be decided at the stage of Order VII Rule 11 CPC unless the plaint is ex-facie barred. The question of valuation is a mixed question of fact and law and cannot be decided at the threshold under Order VII Rule 11 CPC.

The petitioner filed Civil Miscellaneous Application No.8 of 2021 under Section 11 and Order VII Rule 11 CPC in Regular Civil Suit No.1147 of 1987 (renumbered as RCS No.8/2021) pending before the Civil Judge Senior Division, Shrirampur. The trial court rejected the application on 8th August 2022. The petitioner challenged that order by filing Civil Writ Petition No.10947 of 2022 before the Bombay High Court, Bench at Aurangabad. The High Court reserved judgment on 1st March 2023 and pronounced it on 28th March 2023, dismissing the writ petition.

• Code of Civil Procedure, 1908: Section 11, Order VII Rule 11
• Maharashtra Stamp Act, 1958: Section 34
• Limitation Act, 1963: Article 54
• Court Fees Act, 1870: