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2011 DIGILAW 2747 (RAJ)

Nanu Ram Sharma v. Additional District Judge

2011-12-13

MAHESH BHAGWATI

body2011
Hon'ble BHAGWATI, J.—Challenge in this writ petition is to the order dated 3rd July, 2010, whereby the learned Additional District Judge (Fast Track), No.2, Jaipur District, Jaipur, dismissed the application of the petitioners-defendants nos. 1 and 2 filed under Order 7 Rule 11 of CPC. 2. Adumbrated in brief, the facts leading to the writ petition are that the plaintiff-respondent no.2 Ram Gopal Sharma filed a suit for partition, declaration and permanent injunction against the petitioners-defendants nos. 1 and 2 and respondents-defendants nos. 3 to 8. It is averred in the plaint that the plaintiff is the son of Kani Devi, who happens to be the real sister of petitioner no.1. The defendants nos. 1 and 2 had adopted the plaintiff when his age was 5-6 years and since then, he has been residing with them in village Labana. The defendants no. 1 and 2 have treated the plaintiff as their son. The defendant no.1's real brother Mahadev was having no child and adopted Shankar (defendant no.5), who was the son of his real sister Manni. It is alleged that the defendants nos. 1 and 2 had executed a registered adoption deed dated 27th December, 2006. As the plaintiff was the only son of defendants nos. 1 and 2, he was cultivating the agricultural land and residing in the common house of defendants nos. 5 and 6. The residential house shown in the attached map is an ancestral property of the plaintiff and defendants nos. 1, 5, 6 and 7. It is also alleged that the ancestral land described in Para 5 of the plaint was also ancestral land and was in joint khatedari of defendants nos. 1, 5, 6 and 7. As the plaintiff was the son of defendant no.1, according to Hindu Succession Act, he was having right over the disputed property. The plaintiff-respondent prayed for partition of the agricultural land as well as residential house claiming 1/3 share for himself and defendant no.1, declaration that he was adopted son of defendant no.1 and also implored that the defendants be restrained from interfering in the use and occupation of 1/3 share of the plaintiff. The petitioners-defendants and the respondents-defendants filed the written statement of defence and denied all the averments made therein. The petitioners-defendants and the respondents-defendants filed the written statement of defence and denied all the averments made therein. The petitioners-defendants filed an application under Order 7 Rule 11 of CPC and implored the court to reject the plaint, as the plaintiff had no right to seek partition of the suit property and thus, suit for partition was barred by law. The learned trial court dismissed the said application and hence, this writ petition. 3. Learned counsel for the petitioner argued adlongum and at the very outset, took me through the Section 8 of the Hindu Succession Act and canvassed that it is a suit, wherein the son has claimed the partition of ancestral property during the life-time of his father. He further canvassed that according to Hindu law, which was not protected by Hindu Succession Act, in ancestral property, the son could not claim partition in the life-time of his father, thus, his suit for partition was not maintainable. Learned counsel further canvassed that even assuming that Hindu Succession Act was not applicable, even then the suit was barred by law. He has cited the case of M. Yogendra & Others vs. Leelamma N. & Others reported in (2009) 15 Supreme Court Cases 184; Samar Singh vs. Kedar Nath & Others reported in AIR 1987 Supreme Court 1926; and AIR 1998 Supreme Court 364, in support thereof. 4. E converso, learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for the petitioner and contended that the petitioners-defendants had already filed the written statement of defence and they were free to raise any plea with regard to cause of action and jurisdiction. Learned counsel further canvassed that the plea raised by the defendants to the effect that son was not entitled for any share during the life-time of his father, relates to the merit of the suit and the same was to be adjudicated after pleadings were exchanged and evidence adduced by both the parties in view of Hindu Succession Act. So far as the cause of action is concerned, it is well elucidated in the plaint and the judgments cited by the learned counsel for the petitioners do not hold good to the facts of the case on hand. The plaint can be rejected only when the case of the plaintiff is circumscribed by the conditions specified in Rule 11 of Order 7 of CPC. The plaint can be rejected only when the case of the plaintiff is circumscribed by the conditions specified in Rule 11 of Order 7 of CPC. Learned counsel further defended the impugned order and stated the same to be just and proper and contended that the same did not warrant any intervention and thus, the writ petition being devoid of any merit deserves to be dismissed. 5. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the petitioners-defendants nos. 1 and 2 filed the written statement of defence and also filed the application under Order 7 Rule 11 of CPC but never raised this ground that the plaintiff-respondent was not entitled for any share during the life-time of his father and was barred by law to file the suit seeking partition of their ancestral property. The petitioners-defendants are found to have taken omnibus pleas and simply filed an application imploring that the suit was not maintainable and thus, the same be dismissed. So far as the question of legal position in this regard is concerned, in view of the Hindu Succession Act, if the son is not entitled to any share during the life-time of his father, that relates to the merit of the suit, which is to be adjudicated after the pleadings are exchanged and evidence is adduced by both the parties. It is pertinent to note that for the purpose of deciding the application under Order 7 Rule 11 of CPC, the averments in the plaint are germane; the pleas taken by the defendants in the written statement of defence would be wholly irrelevant at that stage. 6. In Saleem Bhai and Others vs. State of Maharashtra and others reported in 2003 (1) SCC 557 , the Hon'ble Apex Court has held with reference to Order VII Rule 11 of the Code that “the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. 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 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. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.” 7. The crux of aforesaid judgment is that the disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of CPC. The learned trial court is found to have un-erringly dismissed the application filed by the defendant-petitioner under Order 7 Rule 11 (D) of CPC. 8. Otherwise too, the power to reject the plaint under Order 7 Rule 11 CPC is conferred on the court and not on the party. Thus, it is the Court alone, which can exercise the power to reject the plaint under Order 7 Rule 11 CPC. Rule 11 deals with the rejection of the plaint, which reads thus: 11. Rejection of plaint.-The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” 9. When a plaint is presented by the plaintiff in the Court, it is for the Court to pass an order with regard to the registration of plaint on the report of Munsarim or Reader of the Court, as the case may be. 10. Adverting to the facts of the instant case, it is noticed that the petitioners-defendants had already filed written statement of defence and thereafter, while invoking the provisions of Order 7 Rule 11 of CPC filed the application beseeching that the suit was not maintainable and deserves to be dismissed. The learned trial court is found to have considered the submissions made by both the parties and having critically analyzed them adlongum and arrived at the conclusion that while invoking the provisions of Order 7 Rule 11 of CPC merely the contents of the plaint were to be examined and if it was found that the plaint disclosed the cause of action, it was sufficiently stamped and not barred by law. It was incumbent on the court to register the plaint and issue summons under Order 7 Rule 9 of CPC. The learned trial court further observed that the objections raised by the petitioners-defendants shall be taken into consideration after recording the evidence of both the parties. The learned trial court is found to have committed no error in arriving at a conclusion that the provisions of order 7 Rule 11 of CPC could not be invoked in the instant case. The impugned order is found to be just and proper and suffers from no infirmity. I am in unison with the finding arrived at by the learned trial court and the impugned order, in the facts and circumstances of the case, does not warrant any intervention. 11. For the reasons stated above, the writ petition being bereft of any merit stands dismissed. 12. I am in unison with the finding arrived at by the learned trial court and the impugned order, in the facts and circumstances of the case, does not warrant any intervention. 11. For the reasons stated above, the writ petition being bereft of any merit stands dismissed. 12. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed.