Suresh Jain vs Tarun Jhamb

Court
Punjab and Haryana High Court

113

IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH

CR No.7862 of 2026
Date of decision: 30.10.2026

Suresh Jain
…Petitioner

Versus

Dr. Tarun Jhamb
…Respondent

CORAM: HON’BLE MS. JUSTICE MANDEEP PANNU

Present :- Mr. Reshabh Bajaj, Advocate
for the petitioner.

*
MANDEEP PANNU, J . (Oral)
1. The present civil revision petition under Article 227 of the
Constitution of India has been filed for setting aside the order dated
14.09.2026 passed by learned Civil Judge (Junior Division), Gurugram, in
Civil Suit No.520 of 2019, whereby the application filed under Order VII
Rule 11 CPC seeking rejection of the counter-claim preferred by the
defendant was dismissed.
2. Briefly stated, the facts of the case are that the plaintiff, Suresh
Jain, filed a suit for permanent injunction pleading that he is the owner in
possession of the suit property. It was further averred that the defendant is a
practicing doctor who visits various hospitals in Gurugram and Delhi. The
parties have known each other for several years and have been dealing with
each other in real estate investments and various other businesses. The
plaintiff sought a decree of permanent injunction restraining the defendant,
NEETU RANI
2026.10.30 15:24
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his representatives, etc., from threatening the plaintiff in any manner
whatsoever, trespassing into the suit property and causing any harm to the
life and belongings of the plaintiff.
3. Upon appearance, the defendant filed a counter-claim pleading
therein that the parties had entered into an oral agreement on 28.02.2018,
whereby the plaintiff had expressed his willingness to sell his house to the
defendant. The sale consideration was settled at Rs.65,00,000/-, out of
which the counter-claimant allegedly paid a sum of Rs.31,18,000/- as
advance and part payment. The remaining amount of Rs.33,82,000/- was
agreed to be paid on or before the registration of the sale deed. It was
further pleaded that the plaintiff was not executing the sale deed in respect
of the suit property in favour of the counter-claimant and was adamant to
alienate the same and hand over its physical possession to some third party
by creating third-party rights therein. Accordingly, the counter-claimant
sought a decree of mandatory injunction directing the plaintiff to perform
his obligations under the alleged contract by executing the sale deed in
favour of the counter-claimant in respect of the suit property and by
handing over its actual physical possession along with the original title
deeds and other relevant documents. A decree of permanent injunction was
also sought restraining the plaintiff from alienating the suit property or
handing over its physical possession to any third party by creating third-
party rights therein.
4. Besides the above, the plaintiff filed an application under
Order VII Rule 11 read with Section 151 CPC seeking rejection of the
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CR No.7862 of 2026 -3-

counter-claim, primarily on the grounds that the main suit was simpliciter
for permanent injunction, whereas the counter-claimant had sought specific
performance of an alleged oral agreement, which had no connection with
the relief claimed in the main suit. It was further contended that the
counter-claim was founded upon an alleged oral agreement dated
28.02.2018, whereas the same had been filed only on 07.09.2024, without
any prior legal notice or demand, and was thus ex-facie barred by
limitation. It was also contended that the counter-claim was an afterthought
and a concocted plea set up by the defendant after an inordinate delay, with
the sole intention of harassing the plaintiff.
5. The defendant-cum-counter-claimant filed a reply to the
aforesaid application under Order VII Rule 11 CPC, alleging therein that the
provisions of Order VII Rule 11 CPC are not applicable to a counter-claim in
the manner sought to be invoked by the plaintiff. It was further asserted that
the agreement had a validity period of seven years and, therefore, the relief
claimed in the counter-claim was within limitation and could not be rejected
summarily at the threshold without leading evidence. The defendant-cum-
counter-claimant also denied the allegations of fraud, manipulation of the
court record and fabrication, as levelled by the plaintiff.
6. Thereafter, learned trial Court, after considering the pleadings
of the parties and the material available on record, dismissed the
application filed by the plaintiff under Order VII Rule 11 CPC vide the
impugned order dated 14.09.2026. Being aggrieved by the said order, the
plaintiff has preferred the present civil revision petition.
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7. Learned counsel for the petitioner contended that learned trial
Court, despite holding that an application under Order VII Rule 11 CPC is
maintainable against a counter-claim, failed to properly examine the
specific grounds raised by the petitioner for rejection thereof. It was argued
that the counter-claim seeking specific performance of the alleged oral
agreement dated 28.02.2018, instituted on 07.09.2024, was ex-facie barred
by limitation under Article 54 of the Limitation Act, 1963, and the mere
assertion of a seven-year validity period could not, by itself, extend the
period of limitation. It was further contended that the counter-claim lacked
the necessary pleadings demonstrating the readiness and willingness of the
defendant to perform his part of the alleged agreement, particularly to pay
the balance sale consideration of Rs.33,82,000/-. Learned counsel further
argued that the alleged agreement had never been disclosed in any earlier
pleadings and that the counter-claim was an afterthought and a counterblast
to the suit for permanent injunction instituted by the petitioner in the year
2019, with the object of harassing him and creating complications in
respect of his property. It was, thus, contended that learned trial Court had
mechanically relegated the objections regarding limitation and
maintainability of the counter-claim to trial without examining whether the
same were apparent from the averments contained in the counter-claim
itself, thereby rendering the impugned order unsustainable in law.
8. I have heard learned counsel for the petitioner and have gone
through the impugned order as well as the material available on record.
9. Short question being involved, issuance of notice of motion to
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the respondent is dispensed with.
10. The short question which arises for consideration in the
present petition is whether learned trial Court has committed any illegality
or jurisdictional error in dismissing the application filed by the petitioner
under Order VII Rule 11 read with Section 151 CPC, seeking rejection of
the counter-claim preferred by the respondent.
11. At the outset, it is required to be noticed that learned trial
Court has rightly rejected the preliminary objection raised by the
respondent-cum-counter-claimant regarding the maintainability of an
application under Order VII Rule 11 CPC against a counter-claim. A
counter-claim is in the nature of a plaint and is to be treated as an
independent suit. Consequently, the provisions of Order VII Rule 11 CPC
are equally applicable to a counter-claim. The said position has, in fact,
been correctly recognized by learned trial Court, and no fault can be found
with its conclusion on this aspect.
12. The controversy, therefore, is confined to the question whether
the counter-claim, on a meaningful reading of its averments, was liable to
be rejected at the threshold on any of the grounds enumerated under Order
VII Rule 11 CPC.
13. It is a settled proposition of law that while considering an
application under Order VII Rule 11 CPC, the Court is required to examine
the averments contained in the plaint and the documents relied upon in
support thereof. For the purpose of deciding such an application, the
defence set up by the opposite party or the correctness and genuineness of
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the allegations made in the plaint cannot be examined. The Court has to
proceed on the assumption that the averments made in the plaint are correct
and determine whether, on their face value, they disclose a cause of action
or attract any of the grounds enumerated under Order VII Rule 11 CPC.
The provision is intended to prevent vexatious and legally untenable
litigation, but at the same time, it cannot be employed as a mechanism for
adjudicating disputed questions of fact at the threshold.
14. In the present case, the principal objection raised by the
petitioner is that the counter-claim seeking specific performance of the
alleged oral agreement dated 28.02.2018, having been instituted on
07.09.2024, is barred by limitation. In this regard, reliance has been placed
upon Article 54 of the Limitation Act, 1963, which prescribes a period of
three years for instituting a suit for specific performance, commencing
from the date fixed for performance or, where no such date is fixed, from
the date when the plaintiff has notice that performance is refused.
15. The question as to whether such a term was actually agreed
upon between the parties, what were the precise terms of the alleged oral
agreement, whether any date was fixed for performance and when the
petitioner allegedly refused to perform his part of the agreement are matters
which require consideration in the light of the pleadings and the evidence
to be led by the parties. Merely because the alleged agreement is stated to
have been entered into on 28.02.2018 and the counter-claim was instituted
on 07.09.2024, it cannot, by itself, be conclusively held at this preliminary
stage that the claim is barred by limitation, particularly when the counter-
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claimant has set up a specific plea regarding the seven-year validity period
and the commencement of limitation is dependent upon the date fixed for
performance or the date of refusal, as contemplated under Article 54 of the
Limitation Act.
16. Another contention raised by learned counsel for the petitioner
is that the alleged agreement was never disclosed in any earlier pleadings
and that the counter-claim was instituted after an inordinate delay, being
merely a counterblast to the suit for permanent injunction filed by the
petitioner in the year 2019. However, the mere fact that the counter-claim
was instituted subsequently or that the alleged agreement was not referred
to in earlier pleadings would not, by itself, constitute a ground for rejection
under Order VII Rule 11 CPC. The allegations regarding the genuineness
of the transaction, the conduct of the parties and the circumstances in
which the counter-claim came to be filed are matters which may have a
bearing upon the merits and credibility of the respective cases of the
parties, but cannot be adjudicated upon merely on the basis of the
assertions made by the petitioner in the application for rejection of the
counter-claim.
17. It is also relevant to notice that the respondent-cum-counter-
claimant has pleaded payment of a sum of Rs.31,18,000/- towards advance
and part sale consideration out of the total agreed consideration of
Rs.65,00,000/-, with the balance amount of Rs.33,82,000/- to be paid at the
time of execution and registration of the sale deed. Whether the alleged
payment was actually made, whether the parties had entered into the
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alleged oral agreement and whether the respondent-cum-counter-claimant
was ready and willing to perform his part of the alleged contract are all
matters which would be subject to adjudication on the basis of the evidence
led by the parties. This Court, while examining the legality of the
impugned order, cannot record findings on the genuineness or otherwise of
the underlying transaction.
18. It is pertinent to reiterate that the power under Order VII Rule
11 CPC is exercisable only when the case squarely falls within the
parameters prescribed therein. The Court cannot conduct a mini trial while
deciding an application under the said provision. Equally, the provision
cannot be invoked to determine disputed questions relating to the existence,
terms and performance of an agreement, which require adjudication on the
basis of evidence. In the present case, learned trial Court has examined the
counter-claim as a whole and has recorded a finding that the same cannot
be said to be devoid of cause of action or barred by limitation on the face of
the record. The reasoning adopted by learned trial Court does not suffer
from any patent illegality, perversity or material irregularity warranting
interference by this Court.
19. Consequently, this Court finds no sufficient ground to interfere
with the order dated 14.09.2026 passed by learned Civil Judge (Junior
Division), Gurugram. Learned trial Court has committed no jurisdictional
error in declining to reject the counter-claim at the threshold and in leaving
the disputed questions relating to the alleged oral agreement, its terms,
limitation and performance to be adjudicated in accordance with law.
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20. Accordingly, the present civil revision petition, being devoid
of merit, is hereby dismissed .
21. It is, however, clarified that the observations made
hereinabove are confined to the adjudication of the application under Order
VII Rule 11 CPC and shall not be construed as an expression of opinion on
the merits of the counter-claim. Learned trial Court shall decide the same
independently, uninfluenced by any observation made in this order.
22. Pending miscellaneous application(s), if any, also stand(s)
disposed of.


(MANDEEP PANNU)
30.10.2026 JUDGE
neetu
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No

NEETU RANI
2026.10.30 15:24
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integrity of this ORDER/JUDGMENT
PHHC, CHD