Harbans Lal @APPELLANT@Hash Kuldeep Chand and others

This revision petition is directed against the order dated 01.06.2018 passed by the learned Sub Judge, Jammu (hereinafter referred to as “Court

belowâ€) whereby the application moved by the petitioner in terms of OrderVII Rule 11 of Code of Civil Procedure for rejection of the suit has been

dismissed.

The respondent No.1 has filed a suit for partition of two rooms No. 2 and 14 out of House No.174-175 situated at Sarwal, Bakshi Nagar, Jammu by

meets and bound. Besides seeking permanent prohibitory injunction restraining the petitioner from raising any construction in the common compound

and passage or causing any obstructions in the use of the common passage, stairs, stairs, compound, gate and bathroom, the respondent No.1 has also

prayed for a mandatory injunction directing the petitioner to remove certain constructions raised on the common amenities.

On being put on notice, the petitioner who was defendant No.1 in the suit, filed written statement raising several preliminary objections regarding

maintainability of the suit like limitation, non-joinder of necessary parties, suit being collusive in nature; subject property already partitioned etc etc.

Without waiting for the issues to be struck in the suit, the petitioner filed an application under Order-VII Rule 11 CPC seeking rejection of the plaint

on the ground that the father of the parties during his life time had executed a memorandum of partition notarized on 04.07.1998 giving definite shares

to the parties to which respondent No.1 was also signatory and that he has already received his share out of the ancestral house. It was also pleaded

that respondent No.3-Sham Sunder, the brother of the petitioner and respondent No.1, had executed a gift deed in favour of respondent No.1 with

respect to his share in the aforesaid house and on the basis of aforesaid gift deed, respondent No.1 stepped into his shoes. Respondet No.1 is now

claiming share of late Sita Ram to be partitioned, though the same has already been given to the petitioner by virtue of will dated 04.07.1988 to which

respondent No.1 is also a signatory. Respondent No.1 resisted the application filed by the petitioner by filing objections. By virtue of the order

impugned the Court below dismissed the application of the petitioner.

The petitioner has challenged the order impugned primarily on the ground that the suit has been filed without any cause of action, in that, respondent

No.1, who has stepped into the shoes of his brother, namely Shyam Sunder, proforma respondent No..3 on the basis of a gift deed can’t be

permitted to seek opening of the partition which stood finalized on 04.07.1988. The suit property i.e. room No.2 and 14 of the House No.174175

situate at Sarwal Bakshi Nagar, Jammu had fallen in the share of late Sh. Sita Ram, father of the petitioner and respondent Nos. 1 to 4 and

grandfather of respondent Nos. 5 to 8 by virtue of a memo of partition dated 04.07.1988 to which respondent No.1 is also a signatory and the said

partition has not been called in question by anyone till date. The aforesaid rooms stand bequeathed in favour of the petitioner by virtue of will dated

04.07.1988 to which, as already stated, respondent No.1 is also a signatory to the aforesaid will. He, therefore, submits that the suit being without any

cause of action against the petitioner is not maintainable and the plaint deserves dismissal in terms of Order-VII Rule-11 CPC. The Court below failed

to appreciate the matter in right perspective and erroneously rejected the application.

Learned counsel for the petitioner submits that the partition arrived at with the consent of parties cannot be re-opened, unless obtained by fraud,

coercion, misrepresentation or undue influence. Reliance in this regard has been placed on a decision of the Supreme Court rendered in the case of

Ratnam Chettiar and others v. S.M.Kuppuswami Chettiar and others; 1976 (1) SCC 214.

Heard learned counsel for the petitioner and perused the record.

Be that as it may, the fact remains that at the time of consideration of the application filed by the petitioner and the respondent the only material

available before the trial Court was the plaint filed by the respondent No.1 and the written statement filed by the petitioner. The respondent No.1 in

the plaint has specifically pleaded that he is seeking partition of two rooms i.e. No.2 and 14 out of house No.174 and 175 situated at Sarwal, Bakshi

Nagar, Jammu on the ground that the aforesaid rooms fell in the share of father of the parties and the share of the father to which all the legal heirs of

the father are entitled to has not been partitioned as yet. Therefore, the respondent has a cause of action to approach the Civil Court for seeking

redressal of his grievance. Going by the averments made in the plaint which may or may not be proved ultimately in the suit, it cannot be said that the

suit is without any cause of action against the petitioner. Â

It appears that the petitioner is seeking rejection of the plaint on the basis of the averments made in the written statement in rebuttal to the case set

up in the plaint.Â

It is trite that a cause of actionis a bundle of facts to be culled out from the plaint and not those projected by the defendants in the application

seeking rejection of the plaint. The plaint cannot be rejected at the threshold and the issues raised by the defendant can be decided only after trial. At

this stage, plaint is required to be read as a whole to find out whether it discloses cause of action against the defendant or not and what exactly is a

“cause of action†is a question of fact which has to be gathered on the basis of averments made in the plaint in their entirety taking them as

correct. “A cause of action is every fact, which traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment

of the Courtâ€​

[see A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, (1989) 2 SCC 163 andBloom Dekor Ltd. v.SubhashHimatlalDesai(1994) 6 SCC 322].

Even, the Supreme court in the case of Mayar (H.K.) Ltd. v. Owners & Parties; 2006 (3) SCC100 held that the plaint cannot be rejected on the

basis of the allegations made by the defendants in his written statement or in an application for rejection of the plaint.

In this backdrop of legal position, if the plaint is examined in its entirety it cannot be said that the plaint does not disclose any cause of action

against the petitioner.

Viewed thus, the order impugned does not call for any interference and therefore, revision petition is dismissed. Â