The effect of non-production of a foundational document like a will in a civil suit for partition will be considered at the time of deciding the suit finally, and heavy costs can be imposed against the plaintiff if the suit is found to be frivolous and in misuse of process of law.

ORDER

1. Petitioner-defendant No.6 has filed this instant revision petition, feeling aggrieved by dismissal of his application under Order 7 Rule 11 CPC vide impugned order dated 02.03.2022 passed by Additional District Judge No.4, Jaipur Metropolitan II in suit No.226/2014.

2. It appears from record that respondent-plaintiff No.1 has filed civil suit for partition against the petitioner and other respondents which is pending before the trial Court.

3. Counsel for petitioner submits that respondent-plaintiff has filed the present civil suit mainly claiming his right of partition on the basis of will dated 04.05.1989. Respondent-plaintiff has not produced any will along with plaint and now his statements have been recorded but plaintiff has not produced the will on record.

4. As per plaint, will dated 04.05.1989 is the basic and foundational document to continue proceedings of partition as the plaintiff has claimed right of partition solely on the basis of will.

5. Counsel for petitioner submits that since respondent-plaintiff has not produced the basic document of will on record before the trial Court, the suit is liable to be dismissed on this account alone.

6. Petitioner-defendant No.6, moved an application on 27.02.2022 invoking provision under Order 7 Rule 11(a) read with Section 151 CPC making a prayer that civil suit be rejected due to non-production of foundational document of will. The trial Court has dismissed the application vide impugned order dated 02.03.2022, hence, this revision petition.

7. Heard counsel for petitioner and perused the impugned order as well as plaint.

8. A perusal of order passed by the trial Court goes to show that the trial Court has observed that effect of non-production of will by plaintiff would be considered and decided at the time of deciding the suit finally. It has been recorded that at the stage of application under Order 7 Rule 11, the averment of plaint are germane and on the ground of non-production of will, the plaint cannot be rejected under the provision of Order 7 Rule 11 CPC.

9. This Court finds that the trial Court has not committed any jurisdictional error in dismissing the petitioner's application. It is true that if any civil suit is found frivolous, vexatious and in misuse of process of law, apart from the provision under Order 7 Rule 11, same can be rejected invoking inherent powers under Section 151 CPC. Such proposition of law has been propounded by the Hon'ble Supreme Court in case of T. Arivandandam Vs. T.V. Satyapal [AIR 1977 SC 2421], however this Court is of the opinion that present suit was filed in 2006 which is in nature of partition and pending at the stage of plaintiff's evidence. The nonproduction of will, may or may not be fatal for plaintiff to claim his right of partition and to pursue the civil suit for partition. This issue can be examined in better way while deciding the civil suit finally.

10. If the trial Court, at the time of final conclusion, finds that plaintiff has instituted the present civil suit in misuse of process of law, without having document of will, then it is open for the trial Court to pass appropriate orders for imposing heavy cost against plaintiff by invoking provision of Section 35 CPC to misuse process of law and to pursue a frivolous and vexatious civil suit. The Hon'ble Supreme Court in case of Vinod Seth Vs. Devinder Bajaj [(2010) 8 SCC 1] has propounded such proposition of law.

11. In such facts and circumstances, this Court is not inclined to interfere with impugned order at this stage.

12. With aforesaid observations, the revision petition is disposed of.