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2022 DIGILAW 3291 (MAD)

B. Tufail Ahamed v. Mehrunnisa

2022-09-14

R.HEMALATHA

body2022
JUDGMENT (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 18.10.2019 in I.A. No.1 of 2019 in O.S. No.214 of 2014 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal.) The present civil revision petition is filed against the order dated 18.10.2019 in I.A. No.1 of 2019 in O.S. No.214 of 2014 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal. 2. The revision petitioners are the defendants in O.S. No.214 of 2014 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal. The respondents/plaintiffs filed the suit for partition of the suit properties. The defendants filed a written statement and also filed an Interlocutory Application in I.A. No.1/2019 under Order 7 Rule 11 (a) (b) and Section 151 CPC for rejection of the plaint on the following grounds: 1) There is no cause of action for filing the suit. 2) Proper court fee has not been paid by the plaintiffs. 3) Shares have not been worked out as per Mohammedan Law. A counter was filed by the respondents/plaintiffs and after full contest, the learned Sessions Judge dismissed the application vide her orders dated 18.10.2019. The learned Sessions Judge has observed as follows: 11. In Order 7 Rule 11(a) (b) CPC it is stated that the plaint shall be rejected when it does not disclose any cause of action. So the plaint has to be read as a whole and when the whole plaint does not disclose any cause of action then the plaint is to be rejected. But in this case on reading of the plaint as a whole it is evident that the respondents have clearly stated about the cause of action and hence the first contention of the petitioners that there is no cause of action in the plaint is held to be not acceptable. 12. The 2nd contention is that the respondents/plaintiffs have not paid proper court fees and that the relief claim is undervalued. The petitioners/defendants contention is that the respondents/plaintiffs are not in possession of the schedule properties and hence court fees paid under Section 37(2) of the Court Fee Act is not correct. 12. The 2nd contention is that the respondents/plaintiffs have not paid proper court fees and that the relief claim is undervalued. The petitioners/defendants contention is that the respondents/plaintiffs are not in possession of the schedule properties and hence court fees paid under Section 37(2) of the Court Fee Act is not correct. On a reading of the petition it is evident that in para 8 of the petition it is stated that “the respondents are not in possession or occupation of the suit property and that there is no specific plea or documents to show that they are in occupation and possession“. But on reading the plaint it is evident that there is specific pleading that the respondents / plaintiffs are in constructive possession of the schedule properties and hence court fees is paid under Section 37(2) of Court Fees Act. So the contention that there is no specific plea made by the respondents/plaintiffs that they are in occupation and possession of the suit schedule properties is not correct. The documents available to prove the same can be looked into in the course of trial. Moreover whether the plaintiffs are in constructive possession or not and whether the court fee paid is insufficient has to be decided only at the time of trial as held in Selvaraj and others Vs. Samporanam and another in CDJ 2017 MHC 4224, can be gone into during the course of trial. So the 2nd contention that the suit is undervalued hence the plaint is to be rejected is also held to be not acceptable. 13. The petitioner counsel in addition to the above two grounds that the cause of action is not stated and that the court fees paid is not correct, has also raised many other grounds under which the plaint has to be rejected. It is argued on the side of the petitioners that the pleadings has not been properly given and it has been pleaded as though joint family and joint family business was in existence. That the Mohammedan law does not recognize joint family and joint family business under Section 57 of Mohammedan law. The pleading that there was joint family is not correct and so the plaint is to be rejected. That with regard to question of law Nazeer Ahamed died in 1996 and his wife died in 2011. That the Mohammedan law does not recognize joint family and joint family business under Section 57 of Mohammedan law. The pleading that there was joint family is not correct and so the plaint is to be rejected. That with regard to question of law Nazeer Ahamed died in 1996 and his wife died in 2011. As Nazeer Ahamed has no issue his wife is entitled to only 1/8 share as Maher and the remaining 7/8 share has to go to the brothers of the deceased and sons of the deceased brothers and sisters. The the first defendant/first respondent is entitled for two shares and another brother is entitled for two shares and thereafter the sisters are entitled to 1 share each. So the four sisters and two brothers of Nazeer Ahamed has to divide the 7/8 share among them. That no arithmetic calculation is given by the plaintiff in the plaint. It has not been stated as to who is to get how much share. No division, no sub division, no arithmetic calculation is given in the plaint and the plaint is bald and vague. Who are the plaintiffs and what is their rights is not stated in the pleadings. Under Section 61 of Mohammedan law the clauses of shares have been stated and the pleadings has not been drafted clearly. This court decides that the above contentions can be considered into only at the end of the trial and that they do not make grounds for rejection of plaint. It is decided that the petition for rejection of plaint under Order VII Rule 11(a), (b) is not maintainable and is dismissed. All the above observations made by the trial judge are based on sound principles of law and therefore, I do not see any reason to interfere with the findings recorded by the trial court. Accordingly, the Civil Revision petition is liable to be dismissed. 3. In the result, I. the Civil Revision Petition is dismissed. No Costs. Consequently connected miscellaneous petition is dismissed. II. The orders passed by the Sessions (Fast Track Mahila) Judge, Namakkal, dated 18.10.2019 in I.A.No.1 of 2019 in O.S. No.214 of 2014, is upheld.