Cases Referred

Samar Singh Vs. Kedar Nath alias K.N. Singh and Others, AIR 1987 SC 1926 [LQ/SC/1987/524] : (1987) 3 JT 165 : (1987) 2 SCALE 135 [LQ/SC/1987/524] : (1987) 1 SCC 663 Supp : (1987) SCC 663 Supp

JUDGMENT

M.M. Das, J.This writ petition has been filed by the defendant Nos. 1 to 3 in C.S. No. 241 of 2010 pending before the learned Civil Judge (Senior Division), Jajpur, which has been filed by the opposite party No. 1 as plaintiff. The opposite party No. 1 has made on the following prayer in the suit:

Let a preliminary decree for partition be passed in favour of the plaintiff carving out her 1/12th share out of the A schedule property and 1/4th share out of the B schedule property in a separate allotment by deputing a civil court commissioner to effect partition;

Let the cost of the suit be decreed in favour of the plaintiff against the defendants;

Let such other relief or reliefs be granted to plaintiff to which she is entitled to.

2. The petitioners in this writ petition have sought for quashing the order dated 20.5.2010 by holding that the suit is not maintainable as there is no cause of action on the part of the plaintiff to file the present suit.

3. As per the genealogy given in the plaint, the plaintiff is the wife of defendant No. 3. Defendant No. 1 is the father and defendant No. 2 is the mother of defendant No. 3. Defendant No. 4 is the younger brother of defendant No. 1 and defendant No. 5 is the widow of the elder brother of defendant No. 1. Defendant Nos. 6 and 7 are daughter and son of defendant No. 5.

4. From a bare reading of the plaint, it appears that the plaintiff has sought for partition of the Schedule A and B properties claiming 1/12th share and 1/4th share in Schedule A & B properties respectively. Hence, it is evident that the suit is one for partition simplicitor. The plaintiff was averred in the plaint that as the defendant Nos. 1 to 3, who are in-laws and husband, are attempting to sale a portion of the property, she has claimed partition. She has stated in paragraph-3 of the plaint that the defendant Nos. 1 to 3 (present petitioners) are entitled to 1/3rd share in Schedule TV property and Schedule B property was recorded in the name of defendant No. 1. A building was constructed over a portion of the Schedule B property from the joint funds of defendant No. 3, who is the plaintiff-husband, and defendant Nos. 1 and 2, who are father-in-law and mother-in-law of the plaintiff.

5. Learned counsel for the petitioners vehemently urged that the plaintiff during the life time of her husband has absolutely no interest over the suit property and she cannot claim any partition of the said property. According to the learned counsel, the Court below should have rejected the plaint in limine as the same is not in compliance with the provisions of Order 7, Rule 1 C.P.C.

6. Learned counsel for the opposite party-plaintiff, however, contended that the petitioners having not filed any application for rejection of the plaint under Order 7, Rule 11 C.P.C. this writ petition ipso facto is not maintainable. He submitted that once a suit has been admitted and summons for settlement of issues have already been issued to the defendants, it is only before the trial Court such question can be raised.

7. From the copies of the order sheets of the trial Court annexed to the writ petition, it is seen that the plaint was filed by the opposite party No. 1 on 12.5.2010. Time was sought for to pay the Court-fee. An application was filed by the plaintiff for exempting her from paying the Court fee on the ground that she is a woman. By order dated 20.5.2010, she was exempted from paying the plaint Court fee. The plaint was admitted and summons were issued to the defendants fixing 22.9.2010. Thereafter, an amendment was carried to the plaint. As by that date, the defendants have not appeared, notice of the said application for amendment was also sent to the defendants. The plaintiff thereafter took repeated adjournments to file requisites for issuance of notice for which the defendant Nos. 1 to 3 have filed the present writ petition questioning the maintainability of the suit.

8. Ordinarily this Court would have remitted the matter back to the trial Court to decide the question of maintainability of the suit on the ground of want of cause of action. However, finding that the opposite party-plaintiff has appeared through her learned counsel, this Court after hearing learned counsel for both the parties and on perusal of the plaint, which has been annexed to the writ petition, thought it appropriate to hear the question of maintainability of the suit.

9. One of the moot questions which arise for consideration is whether the Civil Court before admitting the suit is required to find out as to whether the particulars which the plaint is required to contain as provided under Order 7, Rule 1 C.P.C. have been given and the plaintiff satisfies the said provision. It is a well settled position in law that when the plaint is filed, it is open to the Court not to accept the plaint, if any of the requirements contained in Order 7, Rule 1 C.P.C. are wanting.

10. Cause of action has been held to mean a bundle of essential facts which are required to be proved by the plaintiff before he can succeed in the suit. It can be well observed that admittedly if the plaintiff has absolutely no interest over the disputed property, the plaintiff will be debarred under law to claim partition of such property, he or she having no share in the same.

11. In the instant case, as admitted in the plaint, A Schedule property is the ancestral property of the defendants and B schedule property belongs to the defendant No. 1, who is one of the petitioners. In A Schedule property, which is admittedly ancestral property as per the genealogy read with the provisions of the Hindu Succession Act, 1956, the defendant Nos. 1 to 3 (petitioners) are entitled to 1/3rd share, defendant No. 4 is alone entitled to 1/3rd share and defendant Nos. 5 to 7 are jointly entitled to 1/3rd share. Similarly, in respect of B schedule property, it is admitted by the plaintiff that the said property was recorded in the name of the defendant No. 1. Hence, either the defendant No. 1 is the sole owner if the property is his self acquired property or the defendants will be the joint owners, as the case may be, if it is shown to have been acquired from joint family nucleus. However, during the life time of the husband of the plaintiff-opposite party No. 1 i.e. the petitioner No. 3, the plaintiff will not have any interest in the joint family ancestral property or the property of her husband and in-laws. With regard to power of the Court to reject the plaint, it is needless to mention that it is a well settled position of law that if a plaint does not disclose any cause of action, the Court can reject the plaint at any stage of the suit, as the provisions of Order 7, Rule 11 C.P.C. are imperative and can operate at any stage of the suit. The Supreme Court in the case of Samar Singh Vs. Kedar Nath alias K.N. Singh and Others, , held that Order 7, Rule 11 C.P.C. does not place any restriction or limitation on the exercise of Courts power. It does not either expressly or necessarily by implication provides that power under Order 7, Rule 11 C.P.C. can be exercised only at a particular stage and not thereafter. In the absence of any restriction placed by the statutory provision, it is open to the Court to exercise the power at any stage.

12. It is, therefore, clear that the suit for partition simplicitor is not maintainable at the instance of the plaintiff-opposite party No. 1 and it cannot be said that the plaint contains the particulars of the cause of action which has arisen for the plaintiff to file the suit. Had the learned Civil Judge (Senior Division), Jajpur examined the pleadings of the plaintiff and applied his judicial mind before admitting the plaint, the said Court could not have any other option but to reject the plaint under Order 7 Rule 11(a) C.P.C. It is, therefore, to be addressed as to whether a civil Court should examine the pleadings in the plaint before admitting the suit in order to prevent unnecessary litigations creeping into the docket of the Court. The answer to the above question would be definitely in the affirmative for preventing vexatious litigations entering into the precinct of the Court. When a plaint is filed, it is incumbent upon the civil Court to examine as to whether it complies with the provisions of Order 7 Rule 1 C.P.C., if the particulars as stipulated in the said rule, which are formal in nature, are found to be not complied with, the Court is required to give opportunity to the plaintiff to comply with the same, under the above purview comes Clauses (a), (b), (c), (d), (h) and (i) of Order 7, Rule 1 C.P.C. However, if the Court finds that the rest of the clauses i.e. in relation to the cause of action and when it arose, the jurisdiction of the Court, the reliefs sought for are not given in the plaint, the Court cannot entertain such a plaint and should reject it in limine. Like the facts of the present case, if the Court on perusing the pleadings in the plaint finds that admittedly the plaintiff has absolutely no interest over the disputed property, it would be incumbent upon the Court to hear the plaintiff on the said question and if the Court is not satisfied with regard to maintainability of the suit, to reject the plaint under Order Rule 7, Rule 11 C.P.C. for want of cause of action.

13. As it is found that in the instant case, the plaintiff has absolutely no right to claim partition over the disputed property as she has neither succeeded to an interest over the said property nor has claimed ownership over the said property in any other manner, even after hearing the plaintiff, the Court should not have accepted and admitted the plaint and would have rejected the same by exercising jurisdiction under Order 7 Rule 11 C.P.C. Since after hearing learned counsel for the respective parties, this Court has come to the conclusion that the plaintiff has absolutely no right or interest over the disputed property and has no legal right to claim partition of the said property, it would be futile to direct the trial Court to hear the question of maintainability of the suit and thereafter take a decision with regard to accepting or rejecting the plaint.

14. In view of the above conclusion, the order dated 20.5.2010 by which the suit was admitted stands quashed and the plaint in C.S. No. 241 of 2010 pending before the learned Civil Judge (Senior Division), Jajpur stands rejected.

This writ petition is, accordingly, allowed.