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2016 DIGILAW 4107 (ALL)

Naveen Chand Jain v. Vishwajit Jain

2016-12-19

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. -- Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri Madhav Jain for the revisionist and Shri Jata Shankar Pandey for the opposite parties in both these revisions which arise from two separate suits, filed on identical allegations by the plaintiff-opposite party no. 1. 2. In both the revisions, the orders impugned have been passed rejecting the applications under Order 7 Rule 11 CPC, filed by the revisionist. 3. Original suit no. 667 and 678 were filed in the year 2012 by the opposite party for specific performance of a partition deed dated 07.14.1958, which allegedly gave the plaintiff a right to pre-emption. 4. The plaint allegations are that one Trilok Chand Jain was Karta of a joint hindu family. A partition deed was prepared, partitioning the joint hindu family amongst Trilok Chand Jain, his wife and sons. This deed also provided that in case the partitioned property was to be mortgaged or sold by any of the persons in whose share it fell, he would give a months notice to the other sharers in this regard. If there was no response to the notice within a month, the property could be sold on mortgaged to a third person. The plaintiff came to know that the revisionist had sold the property, which came to his share by the partition deed of 1958 without giving any notice to the plaintiff and, therefore, the suit was filed stating that the plaintiff was ready and willing to purchase the property and had given a registered notice to the revisionist in this regard. 5. The revisionist filed application under Order 7 Rule 11 CPC, alleging that the plaintiff was not the son of Girish Chand Jain and the grand son of Trilok Chand Jain. It was also contended that under the partition deed, the right to pre-emption was given only to the parties to the partition deed itself and not their heirs and, therefore, the plaintiff had no cause of action. 6. The court below has rejected the application under Order 7 Rule 11 CPC on the ground that the final relief, if any could be granted to the plaintiff only after examining the partition deed dated 07.10.1958. At this stage the averments in the plaint disclosed a cause of action. 6. The court below has rejected the application under Order 7 Rule 11 CPC on the ground that the final relief, if any could be granted to the plaintiff only after examining the partition deed dated 07.10.1958. At this stage the averments in the plaint disclosed a cause of action. Nothing beyond the plaint allegations was required to be considered while dealing with an application under Order 7 Rule 11 CPC. 7. The trial Court accordingly dismissed the application of the revisionist. 8. Even before this court, the submissions that have been made necessarily require interpretation of the terms of the partition deed dated 07.10.1958. This document is the basis of the suit and is therefore evidence. Evidence in a suit is not liable to be considered while considering an application under Order 7 Rule 11 CPC and it is only the plaint allegations which are of relevance at this stage. 9. I am in agreement with the observations and the reasoning given in the impugned order, which have also been reiterated by counsel for the opposite party. He has also placed reliance upon the judgment of the Apex Court in P.V. Guru Raj Reddy Vs. P. Neeradha Reddy And Others, 2015 (8) SCC 331 , which also holds that while exercising power under Order 7 Rule 11 CPC only the averments in the plaint have to be read as a whole. The averments in the written statement or in the application for rejection of the plaint are wholly immaterial at this stage. The plaint is liable to be rejected only if the averments therein do not disclose a cause of action or the suit as framed appears to be barred under law. 10. The prayer of the revisionist that the plaint deserves to be rejected, is based on an interpretation of the partition deed of 1958. Besides, learned counsel could not demonstrate that the plaint did not disclose a cause of action or that the suit was barred under any law. Accordingly, the impugned order calls for no interference. 11. The revisions are dismissed.