1. The petitioner, aggrieved of the order dated 30th January 2009 of Learned Second Additional District Judge, Jammu, in application under Order 7 Rule 11 CPC, whereby Learned Trial Judge has dismissed the application and declined to reject the plaint, has come up with instant revision petition.

2. Before dilating on the grounds taken up by petitioner in application under Order 7 Rule 11 CPC, to seek rejection of the plaint, it would be advantageous to have closer look at the background, in which present controversy arises.

3. The respondent on 14th July, 2007 brought a suit against the petitioner before the Trial Court for partition by metes and bounds of the property mentioned in the plaint.

4. Briefly stated the respondent's case was that the parties to the suit are real brothers and their father executed a Will on 16th July 1983, whereby property at Muthi and Tringla Batote, was bequeathed in equal shares to the parties; that the property forming subject matter of the suit, however, was left by father of the parties outside scope of the Will and after his demise on 4th January 1999, subject matter of the suit remained joint and unpartitioned between the parties, to be divided in equal shares. The respondent complained that the petitioner, though requested to take steps for partition of the aforesaid property in equal shares, took no steps, constraining the respondent to approach the Court. It was next pleaded that earlier suit brought in the year 2001 by the respondent for partition of the suit property, was allowed to be "dismissed for non-prosecution" by the respondent because of intervention of his mother and promise extended by the petitioner that the suit property would be partitioned without intervention of the court. The respondent pleaded that as the petitioner did not keep the promise and in the meantime mother of the parties also passed away on 24th December 2004, he was left with no option but to institute fresh partition suit. The respondent added to the subject matter of the previous suit instituted in the year 2001, the jewelry and cash lying in their mother's Locker No.231-A, Central Bank of India, Shalimar Road, Jammu and also asked for division of the valuables and cash found in the Locker in equal shares. The respondent pleading that the petitioner was disputing the Will executed by father of the parties on 16th July 1983, whereby land measuring 08 Kanals 15 Marlas comprising Khasra No.12 at Muthi Jammu, was bequeathed to the respondent, sought a declaratory decree, declaring the respondent exclusive owner of the aforesaid land at Muthi Jammu and entitled to receive its compensation from the Armed Forces, presently in occupation of the land.

5. The petitioner, after he caused appearance before the Trial Court, instead of filling written statement, came up with an application under Order 7 Rule 11 CPC. The petitioner sought rejection of the plaint on the ground that the respondent having allowed suit for partition of house No.1 Mohni Niwas, filed in the year 2001, to be dismissed in default on 12.08.2002, the second suit for partition on the same ground was barred in terms of Order 9 Rule 9 CPC and the plaint liable to be rejected. As regards partition of jewelry and cash, lying in Locker No.231-A, Central Bank of India, Shalimar Road, Jammu, the case set up by the petitioner was that as neither of the parties was aware of the details and description of the jewelry and cash, if any, lying in the Locker, the suit was based on mere speculation and without any cause of action. The petitioner contended that a letter of administration was already granted by the competent court jointly in favour of the parties vide order dated 01.09.2005 (File No.12/Prob) by learned 2nd Additional District Judge Jammu but the Locker was not opened because of non-cooperation on the part of respondent and that the suit for partition of the so-called jewelry was incompetent and without cause of action unless and until the Locker was op

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