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2023 DIGILAW 1286 (RAJ)

Siddharth Jain v. Vidhya Devi Jain

2023-07-04

MAHENDAR KUMAR GOYAL

body2023
ORDER : Mahendar Kumar Goyal, J. - This revision petition is directed against the order dated 16.02.2023 passed by the learned Additional District Judge No.3, Ajmer (for brevity "the learned trial Court") in Civil Suit No.69/2022 whereby, an application filed by the petitioner/defendant (for brevity "the defendant") under Order7 Rule 11 read with section 151 CPC, has been dismissed. 2. The relevant facts in brief are that the respondent No.1/plaintiff (for brevity "the plaintiff") filed a suit against the defendant and the proforma respondent No.2/defendant No.2 stating therein that her brother Shri Padamchand Jain expired intestate on 25.09.2019. It was averred that his wife pre- deceased him and she was his only legal heir under section 8 of the Hindu Succession Act, 1956 (for short "the Act of 1956"). Alleging that the defendant having received the entire amount of fixed deposit of Shri Padamchand Jain being his nominee, was not refunding the same to her, the only legal heir entitled, the suit was filed. Therein, an application filed by the defendant under Order 7, Rule 11 read with section 151 CPC has been dismissed by the learned trial Court vide order impugned dated 16.02.2023. 3. Assailing the order, learned counsel for the petitioner submits that Shri Padamchand Jain did not die intestate and has, as a matter of fact, executed a will dated 25.09.2019 in his favour. He submits therefore, the suit filed under Section 8 of the Act of 1956 was not maintainable and the plaint deserved to be rejected under Order 7, Rule 11 CPC. He, therefore, prays that revision petition be allowed, the order dated 16.02.2023 be quashed and set aside and the plaint be rejected. 4. Heard. Considered. 5. It is trite law that for considering of an application under Order 7, Rule 11 CPC, the averments in the plaint are the only relevant material and defence of the applicant/defendant cannot be looked into at all at this stage. 4. Heard. Considered. 5. It is trite law that for considering of an application under Order 7, Rule 11 CPC, the averments in the plaint are the only relevant material and defence of the applicant/defendant cannot be looked into at all at this stage. In the present case, there is not a whisper of averment in the plaint about execution of any will by late Padamchand Jain in favour of the petitioner and it is the defence of the petitioner that the deceased has executed a will of the subject property in his favour which, obviously, could not have been taken into consideration by the learned trial Court while adjudicating upon the maintainability of the plaint on the basis of averments made therein. 6. In view thereof, in the considered opinion of this Court, the learned trial Court did not err in dismissing the application filed by the petitioner under Order 7, Rule 11 CPC. 7. Consequently, this civil revision petition is dismissed being devoid of merit.