Anil Sharma vs Satya Narayan & Ors.

The instant civil revision petition has been filed to assail the order dated 14th July, 2016 passed by the Additional District Judge No.10, Jaipur Metropolitan in Civil Suit No.205/2012 whereby the application under Order 7 Rule 11 CPC filed by the defendant petitioner has been dismissed.

Brief facts giving rise to this revision petition are that a civil suit for partition, declaration, cancellation of sale and permanent injunction has been filed by the plaintiff non-petitioner against the petitioner defendant in which an application under Order 7 Rule 11 CPC was filed wherein it is alleged that no cause of action has arisen for filing the present suit as a suit for permanent injunction has already been filed by the plaintiff-respondent. Learned trial court by the order impugned has dismissed the application.

It is submitted by the learned counsel for the defendant petitioner that the learned trial court has not properly appreciated this aspect of the matter that in earlier suit filed by the plaintiff (Civil Suit bearing No.186/2004) regarding the same property and against the same parties, the plaintiff could not be able to disclose cause of action. Therefore, on the same averments, the present suit for partition is not maintainable.

The learned trial court observed that all questions which are raised in the application filed under Order 7 Rule 11 CPC, are the questions of facts which are to be decided in the suit after recording evidence of both the parties.

The learned trial court has rightly held that at this stage only the averments made in the plaint are to be taken into consideration. On basis of this legal position the plaint averments disclose that the plaintiff has cause of action to file the suit for partition.

In my considered view, the application filed by the defendant petitioner is devoid of any merit. I find no material irregularity and jurisdictional error in the order passed by the learned trial court.

The revision petition is dismissed in limine.