Case Note & Summary
The petitioners, original defendants in a civil suit, filed a writ petition under Article 227 of the Constitution challenging an order dated 28.11.2016 passed by the 2nd Joint Civil Judge Junior Division, Pune, rejecting their application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint. The respondent, original plaintiff, had filed a suit for declaration, partition, and injunction in respect of suit properties, claiming to be the husband of deceased Sundarabai and that plaintiff Nos. 2 to 5 were her sons and daughters. The petitioners contended that Sundarabai died issue-less on 18.6.1962, and the plaintiff Nos. 2 to 5 were born from the plaintiff's second wife, not from Sundarabai. The petitioners argued that the suit was barred by limitation as it was filed more than 12 years after Sundarabai's death, and also barred by res judicata because the plaintiff had earlier filed a similar suit which was dismissed as withdrawn without liberty to file a fresh suit. The trial court had rejected the application, holding that the plaint disclosed a cause of action. The High Court, after hearing both sides, allowed the petition, setting aside the trial court's order and rejecting the plaint. The court held that the plaint did not disclose any cause of action and was barred by limitation under Article 65 of the Limitation Act, 1963, as the suit for partition was filed beyond 12 years from the date of death of Sundarabai. The court also noted that the earlier suit was withdrawn without liberty, making the subsequent suit barred by res judicata. The court emphasized that the power under Order VII Rule 11(d) CPC can be exercised if the plaint on its face shows that the suit is barred by any law, and the court can look at the plaint and documents filed by the plaintiff to determine this. The petition was allowed, and the plaint was rejected.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Suit for Partition - Limitation - The court considered whether the plaint disclosed a cause of action and whether the suit was barred by limitation. The plaintiff claimed partition of properties inherited from Sundarabai, who died in 1962. The court held that the suit was filed beyond 12 years from the date of death and thus barred by Article 65 of the Limitation Act, 1963. The plaint was rejected as it did not disclose any cause of action and was barred by law. (Paras 4-8) B) Civil Procedure - Res Judicata - Previous Consent Decree - The court noted that the plaintiff had earlier filed a suit for partition which was dismissed as withdrawn with no liberty to file a fresh suit. The court held that the subsequent suit was barred by res judicata and the principle of Order XXIII Rule 1 CPC. (Paras 5-7) C) Limitation Act - Article 65 - Suit for Partition - The court held that a suit for partition of property based on inheritance must be filed within 12 years from the date of death of the deceased. Since Sundarabai died in 1962 and the suit was filed in 2016, it was clearly barred by limitation. (Paras 6-8)
Issue of Consideration
Whether the plaint in a suit for partition and declaration is liable to be rejected under Order VII Rule 11(d) of CPC on the ground that it is barred by limitation and res judicata.
Final Decision
The High Court allowed the writ petition, set aside the order dated 28.11.2016 passed by the 2nd Joint Civil Judge Junior Division, Pune, and rejected the plaint under Order VII Rule 11(d) CPC.
Law Points
- Rejection of plaint under Order VII Rule 11(d) CPC
- Limitation for partition suit
- Res judicata
- Cause of action
