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M.M.DAS
Akshaya Kumar Samal – Appellant
Versus
Gitipuspa Samal – Respondent
Case Summary: In W.P. (C) No. 17069 of 2012, defendants 1-3 in C.S. No. 241 of 2010 (petitioners) challenged the trial court's order dated 20.5.2010 admitting the suit filed by the plaintiff (wife of defendant 3, opposite party 1), seeking a preliminary decree for partition of Schedule 'A' (ancestral property) and 'B' (recorded in defendant 1's name) properties, claiming 1/12th and 1/4th shares respectively, along with costs and other reliefs (!) (!) [22000177080014] (!) [22000177080003]. The suit arose from alleged attempts by defendants 1-3 (husband's parents and husband) to sell portions of the properties; genealogy showed defendants 1-3 entitled to 1/3rd share in 'A', with others holding remaining shares, and 'B' linked to defendant 1 [22000177080001][22000177080002][22000177080003]. Petitioners argued the plaint lacked cause of action under Order 7 Rule 1 CPC as the plaintiff held no interest in the properties during her husband's lifetime, warranting rejection under Order 7 Rule 11 CPC [22000177080004]. Plaintiff countered that no rejection application was filed and the suit was already admitted with summons issued [22000177080005][22000177080006]. The High Court examined the plaint, holding that courts must verify compliance with Order 7 Rule 1 CPC before admission: formal clauses (a),(b),(c),(d),(h),(i) allow amendment opportunity, but absence of cause of action, its arising, jurisdiction, or reliefs mandates in limine rejection under Order 7 Rule 11, applicable at any stage [22000177080007][22000177080008][22000177080009][22000177080010][22000177080011]. Here, the plaintiff had no share or ownership in the ancestral 'A' or 'B' properties during her husband's life, disclosing no cause of action for partition [22000177080010][22000177080011][22000177080012]. Thus, the admission order was quashed, the plaint rejected under Order 7 Rule 11(a) CPC, and the writ petition allowed [22000177080011][22000177080012][22000177080013] (!) (!) .
JUDGMENT :
M.M. DAS, J.
This writ petition has been filed by the defendant Nos. 1 to 3 in C.S. No. 241 of 2010 pending before the learned Civil Judge (Senior Division), Jajpur, which has been filed by the opposite party No. 1 as plaintiff. The opposite party No. 1 has made on the following prayer in the suit:
"Let a preliminary decree for partition be passed in favour of the plaintiff carving out her 1/12th share out of the 'A' schedule property and 1/4th share out of the 'B' schedule property in a separate allotment by deputing a civil court commissioner to effect partition;
Let the cost of the suit be decreed in favour of the plaintiff against the defendants;
Let such other relief or reliefs be granted to plaintiff to which she is entitled to."
2. The petitioners in this writ petition have sought for quashing the order dated 20.5.2010 by holding that the suit is not maintainable as there is no cause of action on the part of the plaintiff to file the present suit.
3. As per the genealogy given in the plaint, the plaintiff is the wife of defendant No. 3. Defendant No. 1 is the father and defendant No. 2 is the mother of defendant No. 3. Defendant No. 4 is the younger brother of defendant
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