AMARKANT VIJAYWAR AND 6 OTHERversusVIPNESH KUMAR AND 3 OTHER

                                                                    AFR

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                    CIVIL REVISION No. - 38 of 2025

Amarkant Vijaywar and 6 Other
                                                        …..Revisionist(s)

                                Versus

Vipnesh Kumar and 3 Other
                                                    …..Opposite Party(s)


Counsel for Revisionist(s)         : Amit Kumar Asthana, Ved Prakash
                                     Shukla, Vineet Kumar Singh
Counsel for Opposite Party(s)      : Neeraj Dwivedi, Pankaj Agarwal,
                                     Vivek Saran (elevated)


Court No. - 5

             HON'BLE KSHITIJ SHAILENDRA, J.

1.      Heard Shri Vineet Kumar Singh, learned counsel for the applicants
in revision (revisionists), Shri Pankaj Agarwal, learned counsel for the
respondent no. 1 (respondent) and Shri Neeraj Dwivedi, learned counsel
for the proforma respondents no. 2, 3 and 4.

THE CHALLENGE

2.      The instant revision under Section 115 CPC at the instance of
defendants in O.S. No. 394 of 2023 (re-numbered as 22 of 2023), raises
challenge to the order dated 24.01.2025, whereby the learned Additional
District and Sessions Judge/Fast Track Court, Agra has rejected an
application 31-C filed on behalf of the revisionists under Order VII Rule
11 CPC, consequence whereof is that the plaint of the suit survives as on
date.

BRIEF FACTS
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3.    The property in dispute was allotted in favour of the revisionists
by Awas Vikas Parishad on 02.01.1993/28.02.2023. The allotment was
cancelled and a fresh allotment was made in favour of the respondent on
03.03.1993. The revisionists earlier filed an Original Suit No. 252 of
1993 claiming relief for declaring the auction made in favour of
respondent as null and void and for declaring the allotment made earlier
in favour of the revisionists as valid. The suit was decreed ex-parte on
18.10.1996. The decree was put into execution, wherein the respondent
filed objections under Section 47 CPC. The same were rejected, against
which a revision was preferred, which was also dismissed and Writ-C
No. 9100 of 2015 filed by him was also dismissed on 16.02.2015.

4.    After dismissal of the said writ petition, a suit being O.S. No. 296
of 2015 was filed by the respondent seeking setting aside of the ex-parte
decree dated 18.10.1996. The plaint of the said suit was rejected under
Order VII Rule 11 CPC holding the suit as barred by limitation. Civil
Appeal filed thereagainst was dismissed and now the matter is pending
before this Court in the form of Second Appeal.

5.    Another suit being O.S. No. 394 of 2023 (re-numbered as 22 of
2023) giving rise to this revision was filed by the respondent with a
prayer to declare the allotment order dated 28.02.2023 passed in favour
of the revisionists as illegal, invalid, void and liable to be recalled, set
aside and quashed. A further prayer was made to restrain the defendants
in the suit, i.e. the Awas Vikas Parishad and its officials, from executing
any sale deed and delivering possession in favour of the revisionist.

6.    In the meantime, a fresh allotment was made and a sale deed was
also executed in favour of the revisionists on 05.04.2023 in execution of
the decree drawn in previous O.S. No. 252 of 1993 and challenge laid to
the execution proceedings at the behest of the Awas Vikas Parishad was
turned down upto Hon'ble Supreme Court.

SUBMISSIONS ON BEHALF OF THE REVISIONISTS

7.    It is contended on behalf of the revisionists that, based upon the
finality attached not only to the allotment but also the sale deed executed
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in furtherance of order passed by the executing court even before
institution of the suit giving rise to the present revision, the suit is barred
by law and, therefore, the plaint was liable to be rejected. It is further
submitted that the plaint has been amended by the respondent and the
relief which has now been claimed by way of amendment, could be
claimed even at the time of filing of earlier suit in the year 2015 and,
therefore, the plaint was liable to be rejected under Order VII Rule 11 (d)
CPC as the suit was barred by Order II Rule 2 CPC and Section 34 of the
Specific Relief Act, 1963 and, therefore, the order impugned be set aside
and the plaint be rejected.

8.    It is further submitted that though all the pleas raised by the
revisionists were discussed by the trial court, an erroneous finding has
been recorded that the suit is not barred by limitation and, then, after
observing that the questions raised by the revisionists are mixed
questions of fact and law and that the same shall be decided after
framing proper issues, the application has been illegally rejected.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

9.    Learned counsel for respondent submits that every adjudication
made in favour of the revisionists is ex-parte qua the respondent in the
sense that the first Suit No. 252 of 1993 was filed by the revisionists
only against the officials of Awas Vikas Parishad and, therefore, the
decree obtained by the revisionists and consequences flowing therefrom
are not binding against the respondent.

10.   It is further submitted that the objections filed by the respondent
under Section 47 CPC were not decided on merits, rather the same were
rejected only on the ground that he was not a party to the proceedings. It
is, therefore, contended that since the pleas raised by the respondent in
execution proceedings were rejected, he had no option but either to raise
his claim under Order XXI Rule 97 CPC as observed by this Court while
deciding Writ-C No. 9100 of 2015 or by way of a separate suit which he
filed in the year 2015 but plaint thereof was rejected, however, the
matter is now subjudice before this Court in the form of Second Appeal.
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11.   It is further submitted that the sale deed relied upon by the
revisionists is without delivery of possession in respect whereof specific
averments have been made in the amended plaint, particularly para 15(f)
thereof, and, therefore, all the questions raised inter se parties require
adjudication on merits.

SUBMISSIONS IN REJOINDER

12.   In rejoinder, learned counsel for revisionists submits that once title
stood vested in their favour pursuant to the sale deed, cancellation
whereof has not been prayed for in appropriate terms, the challenge
initially laid to the subsequent allotment made in furtherance of the
execution proceedings and indirect challenge to the sale deed dated
05.04.2023 is not sustainable. It is further contended that more than Rs.
25,00,00/- (twenty five lakh) was deposited by the revisionists and even
though possession has been delivered to them, they are unable to raise
constructions on the plot in question as time limit fixed by the Awas
Vikas Parishad for the said purpose has already expired on account of
litigation pending between the parties and an order of status quo passed
in F.A.F.O. No. 1104 of 2024 by this Court arising out of suit giving rise
to the present revision itself.

DISCUSSION

13.   I have considered the submissions made and have perused the
material available on record.

14.   The proceedings of different suits and the result thereof not being
in dispute, the Court has to confine its adjudication within the four
corners of Order VII Rule 11 CPC, which provides that when plaint,
from the statement made therein, appears to be barred by any law [sub-
rule (d) of Rule 11], it shall be rejected. It has been held in Saleem Bhai
vs. State of Maharashtra, (2003) 1 SCC 557 that the relevant facts
which need to be looked into for deciding an application thereunder are
the averments in the plaint and the pleas taken by the defendant in the
written statement would be wholly irrelevant at that stage. In R.K. Roja
vs. U.S. Rayudu, (2016) 14 SCC 275, it was reiterated that the
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consideration of the application should not be on the basis of the
allegations made by the defendant in his written statement and the court
has to consider only the plaint as a whole.

15.   Since bar of suit under Order II           Rule 2 C.P.C. has been
emphatically argued, the Court may observe that Order II Rule 2 deals
with the reliefs claimed in a suit in respect of a cause of action. Order II
Rule 2(1) states that every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of action;
but a plaintiff may relinquish any portion of his claim in order to bring
the suit within the jurisdiction of any court. Order II Rule 2(2) states that
where a plaintiff omits to sue in respect of, or intentionally relinquishes,
any portion of his claim, he shall not afterwards sue in respect of the
portion so omitted or relinquished. Order II Rule 2(3) states that a person
entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs; but if he omits, to sue for all such
reliefs, except with the leave of the court, he shall not afterwards sue for
any relief so omitted.

16.    'Bar to sue' is distinct from a 'suit being barred by any law'. In
the former, a suit cannot commence at all and, therefore, would have to
be dismissed by applying Order II Rule 2 CPC, while in the latter case, a
suit can commence but is not entertainable owing to a bar in law. Under
Order II Rule 2, a suit can be dismissed after recording evidence
depending upon the facts and circumstances of the case and on the
analysis of the cause of action in a former suit and a subsequent suit.

17.   Order VII Rule 11 deals with rejection of plaint and not the 'right
to sue being barred'. Qua expression “barred by any law”, it is noted
that the provision of Order II Rule 2 does not bar the filing of any suit
but sub-rules (2) and (3) forbid the suing for certain claims which have
been relinquished or certain reliefs which have been omitted to sue in the
earlier suit in respect of which a plaintiff cannot sue for those claims or
reliefs by filing a subsequent suit. Under Order II Rule 2 of the Code, the
right to sue is taken away in terms of sub-rules (2) and (3) thereof which
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means that the suit could not have been filed at all. On the other hand,
under Order VII Rule 11(d), there is “no bar to sue” but “the suit is
barred by law”. In other words, the application of Order II Rule 2 CPC
to a case can result in denial of reliefs being granted to a plaintiff which
may, in certain cases, also result in dismissal of the suit itself but it does
not result in rejection of the plaint under Order VII Rule 11 (d) of the
Code. The said legal position has been thoroughly explained by the
Hon'ble Supreme Court very recently in S. Valliammai and others Vs.
S. Ramanathan and another: Civil Appeal No. 3624 of 2024, decided
on 16.04.2026.

18.   In view of the above discussion, if the order impugned is perused,
the Court finds partial substance in the submissions made on behalf of
the revisionists that, on the one hand the Court has deferred adjudication
of the pleas raised to the stage of framing issues and leading evidence, at
the same time, plea of limitation has been decided in favour of the
respondent. However, other submissions made that, at this stage itself,
the plaint be rejected without holding trial, cannot be accepted as per the
law laid down and referred.

19.   Considering the record of proceedings and the scope of order
under Order VII Rule 11 CPC, irrespective of the findings recorded in
earlier litigations which may be germane and relevant to the controversy
involved in the present suit also, the same can be considered even in the
form of preliminary issues that may be framed by the trial court, if
pressed. The submissions advanced in this revision go beyond the
purview of Order VII Rule 11 CPC, except the findings recorded on the
question of limitation at this stage.

20.   As far as the grievance raised qua inability to raise constructions
on account of order of status quo operating in F.A.F.O. No. 1104 of
2024, no comment can be made in these proceedings and the parties are
at liberty to raise their respective pleas in the said appeal itself.

CONCLUSION

21.   Consequently, the revision is allowed in part.
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                            22.         The finding recorded by the trial court in the order impugned only
                            to the effect that challenge laid by the respondent is not barred by
                            limitation, is hereby set aside, however, the same shall be adjudicated
                            after framing of issues.

                            23.         Considering the nature and length of litigation, it is directed that
                            the trial court shall frame issues within a period of two months from the
                            date a certified copy of this order is filed before it. Thereafter, the suit
                            shall be posted for further proceedings including adjudication based
                            upon preliminary issues, if they are framed, and the court shall make all
                            endeavour to dispose of the proceedings in accordance with law with
                            utmost expedition without granting unnecessary adjournment to the
                            parties, by fixing short dates on weekly basis.



                                                                                   (Kshitij Shailendra,J.)

                            April 20, 2026
                            AKShukla/-




Digitally signed by :-
ANIL KUMAR SHUKLA
High Court of Judicature at Allahabad