ORDER : Applicants/Defendants No.1 & 2 have filed the present revision under section 115 of the CPC being aggrieved by the order dated 21.01.2019 passed by IVth Civil Judge, Class-II, Ratlam whereby the application filed under Order 7 Rule 11 CPC has been dismissed. 2. Respondent No.1 being a plaintiff filed a suit for declaration, permanent injunction and partition against the present applicants in respect of partition of ancestral property. The description of the property is given in para-2 of the plaint. Initially, the property was owned by Bhagwanlalji, the father of the plaintiff and defendants No.1 & 2, who died in the year 1993. Thereafter, mother Geetabai expired on 06.09.2016. According to the plaintiff, the partition never took place in the Joint Hindu Family. Earlier, the plaintiff filed a suit on 10.03.1995 against the present applicants and mother Geetabai for declaration and injunction in respect of the same family property but the said suit was dismissed on 16.07.1996 in default of appearance of the plaintiff. According to the plaintiff, now the defendants No.1 & 2 are going to alienate the suit property without partition, therefore, he has filed the present suit on 16.07.2018 seeking the relief of partition, permanent injunction and possession against the defendants. After receipt of the summons, the present applicants appeared before the Court and filed an application under Order 7 Rule 11 CPC seeking rejection of the plaint. In the said application, they disclosed that mother Geetabai executed a WILL dated 06.04.2010 in favour of defendant No.1. The plaintiff filed an application under Order 6 Rule 17 CPC seeking amendment in the plaint in order to challenge the WILL dated 06.04.2010 and vide impugned order dated 21.01.2019 the application has been allowed and the plaintiff has incorporated the amendment. Now the plaintiff is also challenging the validity of the WILL along with other existing reliefs in the suit. The plaintiff filed a reply to the application under Order 7 Rule 11 CPC and vide order dated 21.01.2019 the learned Court has rejected the application on the ground that whether the principle of estoppel prevents the plaintiff from seeking the relief of partition by way of subsequent suit can be ascertained only on the basis of evidence and not at this stage and on perusal of the averment of the plaint it appears that the plaintiff has a cause of action to file the present suit. Being aggrieved by the aforesaid order, the defendants have filed the present revision under section 115 of the CPC before this Court. 3. Shri P.M.Bhargat, learned counsel for the applicants submits that the respondent/plaintiff filed a suit for partition in the year 1996 and the same had been dismissed for want of evidence, therefore, the subsequent suit after 20 years for the same relief of partition is not maintainable and which is nothing but abuse of process of law. The plaintiff himself has disclosed the fact of filing of earlier suit in the plaint, hence on the basis of averment made in the plaint, prima facie, the suit is not maintainable and same is liable to be dismissed. The earlier suit was dismissed under Order 9 Rule 9 CPC, therefore, the subsequent suit is barred under the law. The relief claimed in the subsequent suit is also time barred as the plaintiff has filed the suit after a period of 20 years. In support of his contentions he has placed reliance over the judgments of the Apex Court as well as this Court in the case of Hardesh Ores (P) Ltd. vs. Hede and Company 2008 (1) MPLJ 30 , Smt.Karuna Chaturvedi & Ors. vs. Smt. Sarojini Agarwal & Ors. AIR 2010 MP 109 , Nand Kishore & others vs. Pandu & others 2006 (1) MPHT 261 and Ismail vs. Mst.Deokanya 1982 MPWN SN 11. 4. Shri Katkani, learned counsel for the respondentNo.1/plaintiff submits that the earlier suit was filed for the relief of permanent injunction and declaration which was dismissed in default and not on merit, therefore, the principle of res judicata would not apply. There was a dispute of partition between two brothers and at that time the matter was settled between them, therefore, the plaintiff did not appear and even the defendant was ex-parte in the said suit. Now the defendants/present applicants are trying to alienate the suit property against the interest of the present plaintiff, therefore, he has filed the suit on the basis of fresh cause of action. Now the plaintiff is also challenging the WILL dated 06.04.2010 in favour of applicant No.1 for which the suit is very much maintainable based on subsequent cause of action. 5. It is settled law that the application under Order 7 Rule 11 CPC is liable to be decided on the basis of averment made in the plaint. Now the plaintiff is also challenging the WILL dated 06.04.2010 in favour of applicant No.1 for which the suit is very much maintainable based on subsequent cause of action. 5. It is settled law that the application under Order 7 Rule 11 CPC is liable to be decided on the basis of averment made in the plaint. The plaintiff filed the earlier suit for the relief of declaration and injunction. The relief claimed in the earlier suit is reproduced below: 18@& vB~Bkjg ;g fd oknh ds fgr esa ,oa izfroknhx.k dzekad ,d ls 4pkj ds fo:) fuEukuqlkj t;i= ikfjr fd;k tkos%& ¼v½ ;g ?kksf"kr fd;k tkos fd okn pj.k 4pkj esa of.kZr v] c] l esa of.kZr xzke ukeyh esa fLFkr nksuks edku o xzke ukeyh fLFkr l o n esa of.kZr d`f"k Hkwfe;k losZ uacj 20@1 jdck 2- 140 chl@,d jdck nks pkyhl o 20@4 chl@pkj] jdck 0-200 thjks- nks lkS gsDVj o losZ uacj 220@4 nks lkS chl@pkj jdck 0-230 thjks- nks lkS rhl gs- o losZ uacj 20@5 chl@ikWp jdck 1-040 ,d- thjks pkyhl gs- oknh ,oa izfroknh uacj ,d ls 2nks dh la;qDr fgUnq ifjokj dh LoRo] ekydh o vkf/kiR; dh gksdj cxSj foHkktu djk;s izfroknh uacj ,d o 2nks dks cspuk o vUrj.k dk vf/kdkj ugha gSA ¼c½ LFkkbZ fu"ks/kkKk }kjk izfroknh uacj ,d ls 3rhu] dks fu"ksf/kr fd;k tkos fd os xzke ukeyh fLFkr oknh ,oa izfruacj ,d ls 2nks] ds la;qDr fgUnq ifjokj dh ekydh o vkf/kiR; dh d`f"k Hkwfe ;k losZ uacj 20@1 chl@,d] 20@4 chl@pkj] 220@4 nks lkS chl@pkj o 20@5 chl@ikWp dks cxSj fof/k vuqlkj foHkktu djk;s vUrj.k u djs u djkosA 6. It is clear from the aforesaid reliefs that the plaintiff sought the relief of declaration that the property mentioned in the suit is a Joint Hindu Family property and the defendants No.1 & 2 have no right to alienate without partition. He has also sought the relief of permanent injunction that the defendants be restrained to alienate the property without there being any partition as per law, therefore, the plaintiff sought only the relief of declaration and permanent injunction and not the partition. That suit was dismissed in default of non-appearance of the plaintiff without there being any adjudication on merit. The plaintiff filed a subsequent suit on 16.07.2018 on the basis of fresh cause of action accrued on 08.07.2018. That suit was dismissed in default of non-appearance of the plaintiff without there being any adjudication on merit. The plaintiff filed a subsequent suit on 16.07.2018 on the basis of fresh cause of action accrued on 08.07.2018. In this suit, the plaintiff is specifically claiming the decree of partition and possession with the plea that no partition had taken place. The defendant No.1 has came up with the WILL dated 06.04.2010 executed by his mother in his favour. By way of amendment, the plaintiff has challenged the validity of the WILL and seeking declaration that the same be declared as void. The Apex Court in the case of Madhav Prasad Agarwal & another vs. Axis Bank Ltd. & another (2019) 7 SCC 158 has held that under Order 7 Rule 11 CPC the rejection of partial plaint/relief is not permissible. The plaint has to be rejected as a whole. Para-10 of the said judgment is reproduced below: 10. We do not deem it necessary to elaborate on all other arguents as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. Is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) to to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) an/or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial. 7. In the case of Kamla vs. K.T.Eshwara Sa reported in (2008) 12 SCC 661 the Apex Court has held that Order 7 Rule 11 CPC has limited application. For its applicability it must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averment made in the plaint. What would be relevant for invoking Order 7 Rule 11 (d) CPC are the averment made in the plaint. For that purpose there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. The earlier suit was filed on a different cause of action and now the cause of action has changed. After the death of mother on 06.09.2016 the WILL dated 06.04.2010 has come into force and the plaintiff is challenging the validity of the WILL, therefore, for this relief also the suit is maintainable. The suit cannot be treated as time barred also at this stage because the issue of limitation is a mix question of law as well as fact which can be decided only after recording the evidence. The issue of res judicata is also liable to be decided after framing issue and on the basis of evidence. The suit cannot be treated as time barred also at this stage because the issue of limitation is a mix question of law as well as fact which can be decided only after recording the evidence. The issue of res judicata is also liable to be decided after framing issue and on the basis of evidence. The application under Order 7 Rule 11 CPC is liable to be decided on the basis of averment in the plaint and not on the basis of the material produced by the defendants either in the written statement or on an application under Order 7 Rule 11 CPC, therefore, no case for interference is made out in this revision. The trial Court has not committed any jurisdictional error or illegality in passing the impugned order. Accordingly, the petition is dismissed.