Pradyut Ghosh vs Somnath Ghosh & Ors.

One of the defendants in a suit for partition has taken out the present revisional application against an order dated July 10, 2017 whereby the petitioner''s application under Order VII Rule 11 of the Code of Civil Procedure has been rejected.

The petitioner says that the suit is bad for partial partition since all the joint properties of the parties have not been brought into the hotchpot of the suit property.

However, it does not appear from the plaint itself that any property, which is joint to the parties, has been admitted to be left out from the scope of the partition suit. Since it is well settled that for the purpose of considering a demurrer application, only the contents of the plaint or at best the annexures to the plaint can be looked into, it does not appear that the trial court committed any jurisdictional error or illegality in rejecting the application for rejection of plaint.

The petitioner further urges that the plaintiffs/opposite parties have admitted, in their written objection to the petitioner''s application for rejection of plaint, that some joint properties between the parties have been left out from the hotchpot of the suit.

Although, in any event, the objection of the plaintiffs to an application under Order VII Rule 11 of the Code is not a part of the pleadings and, as such, cannot be looked into for the present purpose, even a perusal of such objection does not support the contentions of the petitioner. In the said written objection, the plaintiffs have raised a contention that some other properties belong exclusively to the plaintiffs by virtue of a Will and are not joint properties between the present parties. Since such disputed question of fact cannot justify the rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure, the impugned order dated July 10, 2017 passed in Title Suit No. 165 of 2017 by the Second Court of Civil Judge (Senior Division) at Howrah is hereby affirmed.

C.O. No. 3354 of 2017 is thus dismissed on contest, without any order as to costs. It is made clear, however, that the disputes raised by the petitioner in the application under Order VII Rule 11 of the Code of Civil Procedure will remain open for adjudication, if taken, at the final hearing of the suit. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.