Buddhanath Sandha vs Saraswati Sahoo And Another Vs

A.C. Behera, J

This revision under Section 115 of the CPC, 1908 has been filed by the petitioner (sole defendant in the suit vide C.S. No.4 of 2023) challenging an order of rejection of his petition under O.7 R.11 of the CPC, 1908, which was filed by him (defendant) praying for rejection of the plaint of the plaintiffs (opposite parties in this revision) vide C.S. No.4 of 2023 passed on dated 30.11.2023 by the learned Civil Judge (Sr. Division), Puri.

The suit vide C.S. No.4 of 2023 filed by the plaintiffs (respondents in this revision) is a suit for declaration and partition.

As per the averments made in the plaint, they (plaintiffs) are two sisters of the defendant. The suit properties are their ancestral properties. After the death of their father, the suit properties devolved upon them (plaintiffs) and defendant at a time, for which, they (plaintiffs) and defendant are the joint owners of the suit properties, but their brother i.e. defendant has managed to omit their names from the R.o.R. of the suit properties stating falsely before the settlement authorities that, he (defendant) is the only child of his father, which was not within the knowledge of the plaintiffs.

When the plaintiffs requested the defendant for partition of their legitimate shares from the suit properties, then, the defendant disclosed for the first time before them about the omission of their names from the R.o.R. and denied for partition, for which, they (plaintiffs) filed the suit against the defendant vide C.S. No.4 of 2023 praying for declaration of their joint title over the suit properties as well as partition of their legitimate shares from the same.

In that suit vide C.S. No.4 of 2023, the brother of the plaintiffs i.e. the defendant filed the petition under O.7 R.11 of the CPC, 1908 praying for rejection of the plaint of the plaintiffs on the ground that, the suit of the plaintiffs is hit by the principles of res-judicata due to non-recording of the names of the plaintiffs in the R.o.R. as per the decision of the settlement authorities, but the Trial Court rejected that petition of the defendant under O.7 R.11 of the CPC, 1908 as per Order dated 30.11.2023 assigning the reason that, the said ground raised by the defendant for rejection of the plaint of the plaintiffs cannot be considered at this stage.

On being dissatisfied with the said rejection order dated 30.11.2023 passed by the Trial Court in C.S. No.4 of 2023 rejecting the petition of the defendant under O.7 R.11 of the CPC, 1908, he (defendant) challenged the same by filing this revision being the petitioner against the plaintiffs arraying them (plaintiffs) as opposite parties.

I have already heard from the learned counsels for the petitioner and opposite parties.

It is the settled propositions of law that, at the time of consideration of the petition under O.7 R.11 of the CPC, 1908 filed by the defendant or defendants for rejection of plaint, only the averments in the plaint are to be taken into consideration, but neither the written statement of the defendant or defendants nor any possible plea of the defendant or defendants.

When, in the plaint of the plaintiffs vide C.S. No.4 of 2023, they (plaintiffs) have specifically averred that, the suit properties are their ancestral properties and after the death of their father, the suit properties devolved upon them (plaintiffs and defendant) simultaneously and they (plaintiffs and defendant) are the joint owners over the suit properties, but their brother i.e. defendant has managed to omit their names from the R.o.R. stating falsely before the settlement authorities that, he has no sister and he (defendant) is the only child of his father and as such, when the plaintiffs have alleged the allegation of fraud against the defendant managing to record the suit properties in the settlement R.o.R. only in his name exclusively omitting their names, then at this juncture, the arguments raised on behalf of the defendant (petitioner) that, the suit of the plaintiffs vide C.S. No.4 of 2023 is barred by the principles of res-judicata can only be decided in the judgment of the suit after elicitation of evidence in the trial of the suit, but not prior to that. For which, the reasons assigned in the impugned order for rejection of the petition under O.7 R.11 of the CPC, 1908 of the defendant (petitioner) passed by the learned Civil Judge (Sr. Division), Puri cannot be held as erroneous under law in any manner.

So, the question of interfering with the impugned order through this revision filed by the petitioner does not arise.

Therefore, there is no merit in the revision of the petitioner. The same must fail.

In result, the revision filed by the petitioner (defendant) is dismissed on contest, but without cost.

As such, this revision is disposed of finally.

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