SANJAY KISHAN KAUL, J.

( 1 ) THE matter was passed over once and called the second time. None appeared for the plaintiff.

( 2 ) THE plaintiff has filed a suit for partition, rendition of accounts and permanent injunction in respect of a three storeyed house constructed on a plot bearing No. S-32, Rajouri Garden, New Delh. The property is stated to be owned by Shri Mangal Sain Kapoor, who passed away. Shri Mangal Sain Kapoor was survived by his wife, Shrimati Soma Wanti, daughter Shrimati Sudarshan Devi and son Shri Om Prakash (defendant No. 1 ). The wife of Shri Mangal Sain Kapoor also passed away.

( 3 ) THE plaintiff claims that the property would devolve on his father, Shri Om prakash Kapoor, himself and defendants 2 and 3, who are his brothers. Defendant no. 2 is stated not to be residing in the suit property while defendant No. 3 is stated to be in occupation of the whole of the second floor along with terrace rights. Defendant No. 3 is stated to be in occupation of a portion of the ground floor. The plaintiff claims 1/4th share in the property.

( 4 ) IN pursuance to the service of summons defendants 1 and 3 entered appearance while defendant No. 2 did not appear and was proceeded ex parte on 1. 5. 2007. In the written statement filed by defendants 1 and 3, it has been stated that the plaintiff can have no right, title or claim in the suit property as it was the self-acquired property of Shri Mangal Sain Kapoor in pursuance to a registered sale deed. The three legal heirs to the estate of late Shri Mangal Sain Kapoor, his wife, son and his daughter were the people entitled to property in the share of 1/3rd each. Two registered release deeds were executed in 1972 in terms whereof defendant No. 1 became the absolute owner of the ground floor and was entitled to raise construction for second and third floor. The first floor, however, devolved on his sister Shrimati Sudershan Devi Marwah.

( 5 ) DEFENDANTS 1 and 3 apart from filing the written statement also filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code), seeking rejection of the plaint as no cause of action was disclosed against the defendants.

( 6 ) THE suit had been listed for admission/denial of documents before the Joint registrar on 30. 5. 2007 and again on 20. 7. 2007. The counsel on record for the plaintiff did not appear to carry out the admission/denial of documents. The suit is listed today for framing of issues and disposal of the interim applications.

( 7 ) IN terms of the directions passed on 1. 5. 2007 the parties were directed to remain present in Court for recording of statement under Order 10 Rule 2 of the said Code. Defendants 1 and 3 are present. It is already noticed above that neither the plaintiff has appeared nor their counsel despite the matter being passed over once and called the second time.

( 8 ) THE first aspect to be considered is the consequence of the failure of the plaintiff to remain present in Court. It is necessary to reproduce Order 10 rule 4 (2) of the said Code, which reads as under:

"order X examination OF PARTIES BY THE COURT 4. Consequence of refusal or inability of pleader to answer -. . . . . . . . . . . . . . . . . . . . . . . . (2) If such party fails without lawful excuse to appear in person on the date so appointed, the Court may pronounce judgement against him, or make such order in relation to the suit as it thinks fit. "

( 9 ) A reading of the aforesaid provision shows that if a party fails without lawful excuse to appear in person on the date so appointed, the Court can pronounce judgement. On this short ground alone, the suit is liable to be dismissed.

( 10 ) I have, however, deemed it appropriate to consider the aspect raised in the applications filed by the defendants under Order 7 Rule 11 of the said Code. The premise of the application is that the claim as set out undisputedly states that the property was acquired by late Shri Mangal Sain

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