Jammu & Kashmir High Court
Upper Gummat Bazar vs Mr. Varun Raina on 7 August, 2026
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
2026:JKLHC-JMU:2518
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU.
Case No: CM(M) No. 87/2025
CM NO. 1856/2025
Cav. No. 482/2025
Reserved on: 17.07.2026
Pronounced on:07.08.2026
Uploaded on:07.08.2026
Whether the operative part or full
Judgment is pronounced :Full
Vijay Kumar, aged 68 years
S/O Late Shri Ashwani Kumar,
R/O H.No. 173, Kanji House,
Upper Gummat Bazar, Jammu
......Petitioner(s).....
Through: Mr. Karman S.Johal, Advocate
v/s
1. Rakesh Kumar son of
late Shri Ashwani Kumar
resident of 2nd Floor,
Bhagat Soap factory,
Upper Gummat, Jammu.
2. Gulshan Kumar son of
late Shri Ashwani Kumar
resident of Near
Sachdeva Enterprises,
Greater Kailash,
Opposite Bharat Grand,
Kaluchak, Jammu.
3. Anil Kumar son of late
Shri Ashwani Kumar
resident of 3rd Floor,
Bhagat Soap Factory,
upper Gummat, Jammu.
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Varun Raina, Advocate
......Respondent(s)...
CM(M) No. 87/2025 Page 1 of 19
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.2026:JKLHC-JMU:2518
JUDGMENT
1. The petitioner is aggrieved by the order dated 28.02.2025 passed by
the Court of the learned 3rd Additional Munsiff, Jammu (hereinafter
referred to as the “trial Court”), whereby the application preferred by
the petitioner-plaintiff under Order XII Rule 6 read with Order VII
Rule 11 of the Code of Civil Procedure (CPC) was dismissed.
Aggrieved thereof, the petitioner has preferred this petition under
Article 227 of the Constitution of India, assailing the impugned order,
inter alia, on the ground that the learned trial Court has failed to
properly consider and appreciate the scope and ambit of Order XII
Rule 6 and Order VII Rule 11 CPC.
2. It is stated that the suit shop was purchased by the petitioner through a
registered Sale Deed dated 17.04.1988, to which respondent No. 1 is
one of the attesting witnesses. It is further stated that the suit shop was
given on a licence agreement to the joint family, headed by late Shri
Ashwani Kumar, the father of the parties, in his capacity as Karta of
the Hindu Undivided Family (HUF), with effect from the year 1988
and from the year 1988 to the year 1991, the HUF regularly paid the
licence fee in respect of the occupation of the suit shop to the
petitioner.
3. It is further stated that the impugned order suffers from a complete
failure to consider material admissions on record. It is specifically
pleaded that the entries in the licence fee register were written in the
handwriting of respondent No. 1, thereby acknowledging that he and
the other respondents were in permissive possession of the suit
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property and licence fee was continued to be paid till the year 1992.
The trial Court has neither adverted to nor appreciated this vital
circumstance. Further, while recording the defendants’ stand that the
father of the parties had purchased the suit property in the plaintiff’s
name in the year 1988, the trial court ignored the respondents’
inconsistent and mutually destructive pleas. In the earlier suit for
permanent prohibitory injunction, the respondent No. 1 unequivocally
admitted the petitioner to be the owner of the suit property, whereas in
the present proceedings he claims ownership by adverse possession
with effect from the year 2004. The plea of adverse possession is
further demolished by the respondents’ own documentary admissions.
The registered Memorandum of Family Settlement dated 21.12.2016,
executed by respondents Nos. 1 and 2, expressly records that late Sh.
Ashwani Kumar remained in possession of all nine shops, including
the suit shop, till his death in the year 2014, thereby completely
negating the respondent No. 1’s assertion of exclusive and hostile
possession since the year 2004. Being the authors and signatories of
the document, the respondents are bound by its recitals, which
constitute substantive admissions and require no further proof under
Sections 91 and 92 of the Indian Evidence Act. The same position is
reiterated in respondent No. 1’s legal notice dated 28.03.2017, wherein
all the properties, including the suit property, were asserted to be joint
family properties liable to partition. These unequivocal admissions are
wholly inconsistent with the plea of adverse possession and leave no
triable issue in support of the counterclaim. Consequently, the
CM(M) No. 87/2025 Page 3 of 19
impugned order, having ignored these binding admissions, deserves2026:JKLHC-JMU:2518
to
be set aside.
4. It is further urged by the petitioner that the claim of respondent No. 1
of having acquired title to the suit shop by adverse possession does
not satisfy the essential requirements of the law governing adverse
possession. It is contended that the pleadings in the counterclaim do
not disclose the necessary ingredients constituting a valid plea of
adverse possession. Consequently, the counterclaim preferred by
respondent No. 1 was liable to be rejected under the provisions of
Order VII Rule 11 of the Code of Civil Procedure.
Submissions:
5. Mr. Karman Johal, learned counsel for the petitioner submitted that
the learned trial Court has committed a jurisdictional error in
dismissing the application filed under Order XII Rule 6 CPC and
Order VII Rule 11 CPC. It was argued that the pleadings, legal notice,
family settlement deed and other documents relied upon by the
respondents contain clear and constructive admissions establishing the
petitioner’s ownership of the suit property and demolishing the plea of
adverse possession. According to the petitioner, the plea of adverse
possession is inherently inconsistent with the respondents’ own
admissions acknowledging the petitioner’s title and the father’s
ownership and possession of the property during his lifetime. It was
contended that the respondents have taken mutually destructive and
contradictory stands in different proceedings, which disentitle them
from maintaining the counterclaim. Learned counsel further argued
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that the counterclaim does not disclose any legally sustainable cause
of action and was liable to be rejected under Order VII Rule 11 CPC,
while the admissions on record were sufficient to warrant a judgment
under Order XII Rule 6 CPC without the necessity of a full-fledged
trial. It was further argued that the counterclaim does not disclose the
foundational facts necessary to constitute a valid plea of adverse
possession and was liable to be rejected under Order VII Rule 11
CPC. In support of his submissions, reliance has been placed upon
Ravinder Kaur Grewal v. Manjit Kaur, reported in (2019) 8 SCC
729; Madan Lal Kaushik v. Shree Yog Mayaji Temple and others
reported in 2011 AIR (CC) 3403; Monika Tyagi and others v.
Subhash Tyagi@ Moolraj Tyagi and others reported in 2021 SCC
Online Del. 5400; , Karan Madaan and others v. Nageshwar
Pandey reported in 2014 SCC Online Del. 1277; and Rajiv Ghosh v.
Satya Narayan Jaiswal reported in 2025 INSC 467.
6. On the other hand, Mr. Rahul Pant, learned senior counsel for the
respondents submitted that the impugned order is well reasoned and
does not suffer from any illegality or perversity warranting
interference under Article 227 of the Constitution of India. It was
contended that the petitioner seeks a judgment on the basis of
inferences drawn from certain documents, whereas no clear,
categorical, unconditional and unequivocal admission exists in the
pleadings so as to attract the provisions of Order XII Rule 6 CPC.
Learned senior counsel further argued that the pleadings must be read
as a whole and that the issues relating to ownership, adverse
possession and the effect of the family settlement deed involve
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disputed questions of fact requiring adjudication after the parties lead
evidence. It was further submitted that the counterclaim cannot be
rejected under Order VII Rule 11 CPC as it discloses a cause of action
and the grounds now urged by the petitioner were either not pleaded
before the trial Court or are otherwise misconceived. Reliance was
placed upon various judicial precedents to contend that the power
under Order XII Rule 6 CPC is discretionary and can be exercised
only where the admission is clear, unequivocal and unconditional,
which is not the position in the present case. It was argued that the
pleadings disclose several disputed questions of fact relating to title,
possession and adverse possession, which necessarily require
adjudication after the parties lead evidence. It was further submitted
that the counterclaim discloses a complete cause of action and
contains all the necessary pleadings to sustain the plea of adverse
possession and, therefore, cannot be rejected under Order VII Rule 11
CPC. Reliance has been placed upon Himani Alloys Ltd. v. Tata
Steel Ltd., (2011) 15 SCC 273; Karan Kapoor v. Madhuri Kumar,
2022 LiveLaw (SC) 567; and judgment of Delhi High Court in case
titled M/s Puran Chand Packaging Industrial Pvt. Ltd. v. Smt.
Sona Devi, RFA (OS) No.41/2000 dated 26.05.2008.
7. Heard learned counsel appearing for the parties and perused the
record.
Factual Matrix:
8. A suit came to be instituted by the petitioner against the respondents
for the issuance of the following reliefs:
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(i) Mandatory injunction against defendants for vacating the shop
consisting of three floors measuring 9.8 ft. by 32.6 ft. situated at
Upper Gummat (hereinafter referred to as the suit property), to
remove all their belongings from the property and handing over
the vacant and peaceful possession of the suit property; and for
the issuance of
(ii) A decree in favour of the plaintiff and against the defendants
for Licence fee at market rate of that time along with 18%
compound interest from 1st April 1991 onwards till filing of suit
which was promised by defendants while taking the suit
property as license in the interest of justice and equity; and for
the issuance of-
(iii) A decree in favour of the plaintiff and against the defendants
for a sum of Rs.22000/- per month for illegally occupying the
suit property w.e.f. from the date of the filing of the suit till
realization along with pendentlite and future interest @18%
compound interest per annum for illegally occupying and
trespassing the suit premises in the interest of justice and
equity; and for the issuance of-
(iv) A decree in favour of the plaintiff and against the defendants
for increment of future damages @10% every year till
possession is delivered in the interest of justice and equity; and
for the issuance of-
(v) Any other interim or final relief to which the plaintiff may be
found entitled to in the facts and circumstances of the case.
9. The above mentioned reliefs were sought by the petitioner on the
grounds that the suit shop was purchased by him in the year 1988
through the medium of sale deed dated 17.04.1988 and one of the
witnesses to the said sale deed was respondent No.1. The petitioner
stated that he gave the shop to joint family headed by its Karta,
namely, Ashwani Kumar, father of the parties, as the licensee, at the
prevailing market rate and the license fee/rent for financial year 1988-
1989 was Rs.750/-, for the year financial year 1989-1990 was
Rs.750/-, license fee/rent for financial year 1990-1991 was Rs.900/-.
In the financial year 1990-1991, he raised the RCC construction on
this shop and constructed two more floors above this shop. In the
financial year 1991-1992, the respondent No.1 and respondent No.2
who were managing joint family business and joint family properties
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with the consent of father Ashwani Kumar and all other family
members/coparceners, told the petitioner that they will give 18%
compound interest on license fee and license fee will be increased at
market rate at the end of every financial year. In the year 2017, he
came to know that respondent no.1 has given the second floor of the
suit shop along with adjacent joint family property to M/s Kanav
Coaching Centre on rent at the Rs.35,000/- per month and first floor
as Godown to a blanket wholesaler who was already a tenant in joint
family property without his consent and accordingly in the month of
November, 2017, he cancelled the license of respondent no.1 by
personally visiting the shop with his friend and asked him to vacate
and handover the peaceful possession of the suit property to the
petitioner to which respondent No.1-Rakesh Kumar said that he
needed at least 12 months’ time to clear all the dues of license fee
along with interest @ 18 % till that date, as agreed while taking the
premises as licensee and also to vacate the premises. The Licensee
Anil Kumar-respondent No.3 and Gulshan Kumar-respondent no.2
also promised the petitioner that they will make the payment of the
arrears of license fee along with 18% compound interest as agreed
while taking the premises in their possession as licensee from the
petitioner and will hand over the entire premises to the petitioner in
November 2018 along with arrears of license fee with compound
interest. In December, 2018, the petitioner also cancelled the license
of Anil Kumar and Gulshan Kumar in presence of his friend and
asked them to handover the vacant and peaceful possession of the suit
property within 30 days and clear all the dues of license fee till that
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date with 18% compound interest as agreed while taking the shop and
floors as licensee.
10.The written statement/counterclaim was filed by respondent no.1
stating therein that respondent No.1 along with others including the
plaintiff were conducting the business under the name and style of
M/s Bhagat Soap Factory in the suit property as well as other
adjoining shops and the same were under the possession of the father
of the parties. Since the suit property was in continuous possession of
the father of the parties, the said property was ultimately got
purchased by the father of the parties through the medium of a sale
deed in the year 1988 in the name of the petitioner. Further, the
respondent no.1 was working as a partner in the above said firm right
from the year 1976. The said business was ultimately shifted from the
said location to Main Road, Kaluchak in the year 1992 and the
premises was taken on rent by the partnership firm from Sh. Ashwani
Kumar Sachdev. After the shifting of the business of M/s Bhagat Soap
Factory from the abovementioned premises, the parties to the suit
started conducting new business under the name and style of M/s
Bhagat Soap and General Traders. The said partnership firm was
reconstituted in the year 1996 and the petitioner retired from the
partnership business after taking his respective share. The respondent
No.1 denied that the firm M/s Sachdeva Garments ever closed its
business, to the contrary new investments were made for the
expansion of the business and the petitioner clandestinely invested the
firm’s funds in various new businesses and properties etc. regarding
which different cases are pending before the competent courts with
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respect to the said business and its assets, which fact has been
suppressed by the petitioner from the court. The petitioner himself
was the partner of the firm M/s Bhagat Soap & General Traders
operating from shops of all the parties as such, any question of paying
the rent to the petitioner from the year 1992 onwards does not arise.
The petitioner willfully withdrew from the partnership business after
taking his respective share and left the partners to manage the
business on their own which continued till the year 2004 and stopped
functioning thereafter and all the partners also abandoned the
premises/shops of other partners and the shop belonging to the
plaintiff again went back into his exclusive possession. In the year
1999, the petitioner had obtained a loan of Rs. 25,000/- from the
proprietorship concern of the wife of the respondent No. 1 with a
condition that the petitioner will repay the said amount to the
respondent no.1 and his wife within a period of one year. Since the
petitioner had failed to repay the loan amount as mentioned above to
the wife of the respondent no.1, the respondent no.1 and his wife took
over the possession of the suit shop forcibly in the year 2004
exclusively and till date the respondent no.1 and his wife are in
peaceful possession of the same and the wife of the respondent no.1
who was conducting the business of provisional store from the other
shops under the name and style of “M/s Sachdeva House” also started
conducting the business of provisional store from the suit shop after
taking over its possession under the name and style of “M/s Sachdeva
House”. The respondent No.1 has placed on record the registration
certificate issued by the Labour Department in favour of the wife of
CM(M) No. 87/2025 Page 10 of 19
the respondent no.1, namely, Smt. Veena Sachdev. It is the case of 2026:JKLHC-JMU:2518
the
respondent no.1 that the suit shop is in his possession of the
respondent no.1 and his wife right from the year 2004 and since then
their possession over the suit shop is open, hostile and the respondent
no.1 and his wife, namely, Smt. Veena Sachdeva have become owners
of the suit property by way of adverse possession and now, the
petitioner has no right or authority to interfere into their peaceful
possession over the suit property and to interfere into the business
being run therein by the wife of the respondent no.1 or to get the
possession of the same from the respondent no. 1 or his wife.
11.The respondent No.1 while filing the written statement also filed
counterclaim to the effect that he along with his wife Veena Sachdev
be declared owner in possession of the shop consisting of three
floors situated at Upper Gumat, Jammu by way of adverse possession
on the basis of facts as noted above.
12.The respondent No.2 has also filed the written statement objecting the
claim of the petitioner and admitting the claim of the respondent No.1
and his wife over the shop. Respondent No.3 has also filed his written
statement on similar lines and objected to the suit of the petitioner.
13.The petitioner filed reply to the counter-claim by asserting that the
same was not sustainable on the basis of adverse possession because a
person who traces his possession to a lawful title can never become an
owner by adverse possession. It was further stated that the respondent
no.1 was not sure about the suit property as to who is true owner of
the said property, therefore, the question of his being in hostile
possession and the question of denying the title of the true owner does
CM(M) No. 87/2025 Page 11 of 19
not arise at all and the respondent No.1 on 21 December, 2016 in a 2026:JKLHC-JMU:2518
so-
called family settlement made unambiguous, unequivocal and clear
statement that Ashwani Kumar was the owner of the suit property and
not the petitioner, but in the present suit he has admitted that the suit
property is individual property of the petitioner. Under these
circumstances, the claim of the respondent no.1 cannot be entertained.
14.Thereafter, application came to be preferred by the petitioner under
Order 12 Rule 6 CPC for passing a judgment in favour of the
plaintiff-petitioner to the extent of directing the defendants-
respondents for vacating the shop consisting of three floors
measuring 9.8 ft by 32.6 ft situated at Upper Gumat, Jammu and to
remove all their belongings from the property and hand over the
vacant and peaceful possession of the suit property to him and to
dismiss the counterclaim of the respondents in the above titled case
under Order 7 Rule 11 CPC. The issuance of judgment under Order
12 Rule 6 CPC was also sought by the petitioner on the ground that
respondent No.1 on the basis of alleged judicial admissions of
respondent No.1 and other authentic records most of which were
prepared by respondent no.1 and respondent no.2 under their own
hand and seal, which conclusively proves the claim of the petitioner.
It is stated that respondent No.1 has admitted that Smt. Manju
Sachdeva is Proprietor of M/s New Sachdeva Traders in official
documents scribed under his own hand and seal in his position as
Accountant of the Proprietorship business of Smt. Manju Sacheva and
was having knowledge of the fact that the petitioner has no concern
with M/s New Sachdeva Traders right from the beginning. Besides,
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the petitioner has placed reliance upon various documents, including
the legal notice issued in the month of March, 2017, the Income Tax
Returns (ITRs) and balance sheets of M/s New Sachdeva Traders
allegedly prepared by respondent No. 1 to contend that respondent
No. 1 has made clear, unequivocal and unambiguous admissions with
regard to the claim of the petitioner. In paragraph 9 of the application,
the petitioner has catalogued various statements and pleadings, which,
according to the petitioner, constitute such admissions and, therefore,
justify the passing of a judgment on admissions under law as well as
the rejection of the counterclaim.
15.Interestingly, the application filed by the petitioner comprises of 71
pages wherein the petitioner has made an attempt to prove the
admission on the part of the respondent no.1 with regard to the claim
of the petitioner. The respondent No.1 in turn filed the objections to
the said application thereby stating that he has neither made said
admissions nor admitted any such facts on the basis of which
judgment can be passed in favour of the petitioner or counterclaim can
be rejected by the court.
16.The other respondents also filed objections thereby negating the claim
of the petitioner.
Appreciation:
17.Before adjudicating the contentions raised by the parties, it would be
apt to take note of the judicial precedents concerning the scope of
Order XII Rule 6 CPC and Order 7 Rule 11. In “Karan Kapoor Vs.
CM(M) No. 87/2025 Page 13 of 19
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Madhuri Kumar”, AIR Online 2022 SC 941, the Hon’ble Apex
Court has held as under:
16. Thus, legislative intent is clear by using the word ‘may’
and ‘as it may think fit’ to the nature of admission. The said
power is discretionary which should be only exercised when
specific, clear and categorical admission of facts and
documents are on record, otherwise the Court can refuse to
invoke the power of Order XII Rule 6. The said provision
has been brought with intent that if admission of facts
raised by one side is admitted by other, and the Court is
satisfied to the nature of admission, then the parties are not
compelled for fullfledged trial and the judgment and order
can be directed without taking any evidence. Therefore, to
save the time and money of the Court and respective
parties, the said provision has been brought in the statute.
As per above discussion, it is clear that to pass a judgment on
admission, the Court if thinks fit may pass an order at any stage
of the suit. In case the judgment is pronounced by the Court a
decree be drawn accordingly and parties to the case is not
required to go for trial.
********
18. On the issue of discretion of Court to pass judgment on
admission, a threeJudge Bench of this Court in the case of S.M.
Asif v. Virendar Kumar Bajaj – (2015) 9 SCC 287) made the
legislative intent clear to use the word ‘may’ which clearly
stipulates that the power under Order XII Rule 6 of CPC is
discretionary and cannot be claimed as a matter of right. In
the said case, the suit for eviction was filed by the Respondent
Landlord against the Appellant Tenant. The relationship of
tenancy was admitted including the period of Lease Agreement.
The Plaintiffs’ claim was resisted by the Defendant setting up a
plea that the property in question was agreed to be sold by an
agreement and the advance of Rs. 82,50,000/ was paid. The
Defendant in course of taking the defense stoutly denied that
Respondent/Plaintiff has continued to be the landlord after
entering into Agreement to Sell. The suit for specific
performance was also filed which of course was contested by
the Plaintiff. In the said case, this Court was of the view that
deciding such issues requires appreciation of evidence. Mere
relationship of landlord and tenant cannot be said to be an
unequivocal admission to decree the suit under Order XII Rule
6 of CPC. Resultantly, this Court by setting aside the judgment
passed by the High Court remitted the matter back to the Trial
Court subject to deposit of the arrears of the rent and the
compensation for use of occupation of the suit premises. Such
deposit was subject to final outcome of the eviction as well as
suit for specific performance.
(emphasis added)
CM(M) No. 87/2025 Page 14 of 19
18.In Himani Alloys Ltd. Vs. Tata Steel Ltd., AIR Online 2011 2026:JKLHC-JMU:2518
SC
385, the Hon’ble Apex Court has held as under:
10. It is true that a judgment can be given on an
“admission” contained in the minutes of a meeting. But the
admission should be categorical. It should be a conscious
and deliberate act of the party making it, showing an
intention to be bound by it. Order 12 Rule 6 being an
enabling provision, it is neither mandatory nor peremptory
but discretionary. The court, on examination of the facts
and circumstances, has to exercise its judicial discretion,
keeping in mind that a judgment on admission is a
judgment without trial which permanently denies any
remedy to the defendant, by way of an appeal on merits.
Therefore unless the admission is clear, unambiguous and
unconditional, the discretion of the Court should not be
exercised to deny the valuable right of a defendant to
contest the claim. In short the discretion should be used
only when there is a clear ‘admission’ which can be acted
upon. (See also Uttam Singh Duggal and Co. Ltd. vs. United
Bank of India 2000 (7) SCC 120, Karam Kapahi vs. Lal Chand
Public Charitable Trust 2010 (4) SCC 753 and Jeevan Diesels
and Electricals Ltd. vs. Jasbir Singh Chadha 2010 (6) SCC 601.
There is no such admission in this case.
(emphasis added)
19.In view of the above, it emerges without peradventure that to warrant
the pronouncement of a judgment on admissions pursuant to Order
XII Rule 6 of the Code of Civil Procedure, the admission in question
must perforce be explicit, clear, categorical, unambiguous,
unequivocal, and unconditional. Moreso, that the plaintiff possesseth
no absolute or indefeasible right to demand a judgment in terms of
Order XII Rule 6. The provisions of Order XII Rule 6 being purely
enabling and directory in nature, the same vest a power of discretion
in the Court, a discretion to be invoked solely where the admissions
satisfy the rigid criteria hereinbefore adumbrated, and upon a showing
that the defendant harboured a clear intention to stand bound thereby.
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20. The principles governing the rejection of plaint under Order 7 Rule
11 CPC have been laid down by the Hon’ble Supreme Court in
Church of Christ Charitable Trust and Educational Charitable
Society Vs. M/s Ponniamman Education Trust, AIR 2012 SC
3912, wherein, the Hon’ble Supreme Court of India has observed that
the averments made in the written statement are immaterial and it is
duty of the court to scrutinize the averments/pleas in the plaint to
consider the application for rejection of the plaint under Order 7 Rule
11 CPC.
21.It would also be apposite to refer to the judgment of the Hon’ble
Supreme Court of India in R.K. Roja v. U.S. Rayudu and another,
AIR 2016 SCW 3282. Paragraph 5 of the said judgment, being
relevant for the present controversy, is extracted hereunder:
“5. We are afraid that the stand taken by the High Court in
the impugned order cannot be appreciated. An application
under Order VII Rule 11 of the CPC can be filed at any stage,
as held by this Court in Sopan Sukhdeo Sable and others v.
Assistant Charity Commissioner and others.. “The trial court
can exercise the power 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. …”.
The only restriction is that the consideration of the
application for rejection should not be on the basis of the
allegations made by the defendant in his written statement
or on the basis of the allegations in the application for
rejection of the plaint. The court has to consider only the
plaint as a whole, and in case, the entire plaint comes under
the situations covered by Order VII Rule 11 (a) to (f) of the
CPC, the same has to be rejected.”
(emphasis added)
22.The petitioners’ plea regarding the lack of necessary ingredients of
adverse possession to maintain the counterclaim seeking perfection of
title by prescription by respondent No.1, is a pure defence that falls
CM(M) No. 87/2025 Page 16 of 19
outside the limited scope of Order VII Rule 11 CPC. In deciding2026:JKLHC-JMU:2518
an
application under Order VII Rule 11 CPC, the Court must look
entirely at the plaint. Though the Court may examine parties under
Order X CPC to nip sham litigation in the bud where no real cause of
action exists and mirage of cause of action has been created. It cannot
exercise powers under Order VII Rule 11CPC where there are serious,
disputed questions of material fact. Such factual controversies can
only be adjudicated by framing issues and taking evidence on record.
23.So far as the present suit is concerned it is the categoric stand of
respondent no.1 that in the year 2004, respondent no.1 and his wife
forcefully took the possession of the suit shop as the petitioner did not
repay the loan amount. All the respondents including the respondent
no.1 in particular have objected the contention of the petitioner that he
has made any admission on the basis of which judgment can be passed
in favour of the petitioner. Though the respondent no.1 has stated that
the suit shop was purchased by the father of the parties through the
medium of sale deed in the year 1988 in the name of the petitioner,
but simultaneously he has also stated that in the year 2004 he and his
wife forcefully occupied the suit property and ever since then it has
continued to be in their possession. The suit was instituted in the
month of January 2019 and in view of the disputed facts, the suit as
well as the counterclaim requires trial.
24.The plea of admission raised by the petitioner is either denied by the
respondents or is intermingled with the counterclaim of respondent
No. 1 and, as such, can be decided only after a full-fledged trial.
CM(M) No. 87/2025 Page 17 of 19
25.This Court is of the considered view that the necessary ingredients 2026:JKLHC-JMU:2518
for
invoking the provisions of Order XII Rule 6 CPC, so as to pass the
judgment on the basis of admissions alone, are conspicuously absent
in the present case. Equally, the counterclaim preferred by respondent
No. 1 cannot be said to be devoid of a cause of action so as to warrant
its rejection under Order VII Rule 11 CPC. Where the pleadings
disclose disputed questions of fact or the alleged admissions require
interpretation or are capable of more than one inference, the matter
necessarily has to proceed to trial. In the present case, the rival
pleadings raise contentious issues regarding possession and the plea of
adverse possession, which require adjudication on the basis of
evidence. The rival pleadings disclose substantial disputes relating to
title, the character and origin of the possession, the legal effect of the
alleged family settlement, and the plea of adverse possession. These
issues necessarily require adjudication after the parties are afforded an
opportunity to lead evidence.
26.After examining the order impugned, this court finds that the learned
Trial Court has rightly exercised its discretion in refusing to pass a
judgment on admissions and in declining to reject the counterclaim at
the threshold. The view taken by the learned trial Court is found to be
in consonance with law and does not suffer from any jurisdictional
error, illegality, or perversity warranting interference in exercise of
the supervisory jurisdiction of this Court under Article 227 of the
Constitution of India. The petition is devoid of merit and is,
accordingly, dismissed.
CM(M) No. 87/2025 Page 18 of 19
27.The observations made herein are only for the purpose of deciding 2026:JKLHC-JMU:2518
the
present petition and shall not be construed as an expression of opinion
on the merits of the suit or the counterclaim. The learned trial Court
shall decide the suit and the counterclaim, independently, on their own
merits, and on the basis of the evidence adduced by the parties,
uninfluenced by any observations made in this order.
(Rajnesh Oswal)
Judge
Jammu
07.08.2026
Madan Verma-Secy
Whether order is speaking? Yes.
Whether order is reportable? Yes.
CM(M) No. 87/2025 Page 19 of 19
