IMPORTANT POINT
The court held that a plaint must disclose a cause of action to proceed to trial, and the merits of the case are to be determined at that stage, not during the rejection of the plaint.

JUDGMENT :

Mr. Birendra Kumar, J. - The petitioner is aggrieved by order dated 13.01.2023 passed in Civil Suit No. 91/2022 whereby, the Learned Trial Judge has dismissed the prayer of the petitioner to reject the plaint under Order VII Rule 11 CPC. A brief fact of the case is that one Ram Das Mundra had one son and two daughters. The two daughters are plaintiffs in the aforesaid suit against the petitioner, who is son of Late Ram Das Mundra.

2. Ram Das Mundra and his widow sister Kishani Bai had purchased two shops through registered sale deed dated 22.08.1972. Later on, Kishani Bai executed a Will on 19.03.1973 in favour of the petitioner Kailash Mundra in respect of one of shops and Ram Das Mundra was a witness of that Will. Kishani Bai died in the year 1983.

3. Ram Das Mundra executed a Will in favour of his wife Pushpa in respect of another shop on 02.02.2012. Pushpa executed a Will in favour of her daughters who are plaintiffs of the suit, on 13.07.2018. The plaintiffs filed suit for ejectment against the petitioner for recovery of possession from one room along with attached bathroom and a kitchen on the upper floor as well as for mense profit. The plaintiffs asserted that their father Ram Das Mundra had made construction on the upper floor of the shops in the year 1980, the petitioner was in permissive possession of the upper floor though he had no right/ title over the said portion. Plaintiffs have admitted that one of the shops was in possession of the defendant/petitioner and Bhansali Jewellers was tenant of the petitioner in shop no. 1 and shop no. 2 was of the plaintiffs by virtue of Will executed by their mother Pushpa Mundra.

4. Learned counsel for the petitioner submits that the suit for recovery of possession and mense profit was not maintainable on bare perusal of the plaint rather, a suit for partition was permissible even if case of the plaintiffs/respondents is accepted as pleaded. Learned counsel contends that it is admitted case of the plaintiffs that on 19.03.1973 Kishani Bai had executed a Will in favour of the petitioner in respect of one of the shops purchased by Kishani. The sale deed of the year 1972 would reveal that the entire construction including the base and roof of the shop were purchased by the vendors, therefore, any construction made by the father in the year 1980, even on the portion of shop purchased by Kishani Bai and bequeathed in favour of the petitioner, may be subject matter of partition. Moreover, the entire construction on the first floor made by Ram Das Mundra was divisible between the plaintiffs and the defendant after death of Ram Das Mundra on 11.02.2012. Learned counsel for the petitioner has relied on the following cases:-

Rajendra Bajoria v. Hemant Kumar Jalan AIR 2021 SC 4594

Dahiben v. Arvindbhai AIR 2020 SC 3310

Vijay Singh v. Buddha (2012) 2 DNJ 573

Midnapur Zamindary v. Naresh Roy (1924) 0 AIR PC 144

Kameshwari Dasya v. Sshuram Deka AIR 1924 CAL 792

Kovummal v. Urathkandiyil (1936) 0 AIR Mad 666

5. Learned counsel for the respondents contends that on perusal of the plaint it cannot be said that a baseless and cryptic suit has been filed without any cause of action nor the grounds mentioned in Order VII Rule 11 for rejection of plaint are attracted in the facts and circumstances of this case. Learned counsel for the respondents contends that relief can be amended even at the subsequent stage of the suit and only for the reason that the relief has been prayed for may not be granted on final adjudication of the suit, the plaint cannot be rejected. Learned counsel next contends that only 'shop' of Late Ram Das Mundra was bequeathed in favour of Pushpa, therefore, Pushpa could not have bequeathed more than what she got. Construction on the upper portion of the shops was made by Ram Das Mundra and was divisible amongst his siblings.

6. The law is well settled that for dealing with application under Order VII Rule 11 of the CPC only the averments made in the plaint and the documents pro