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 No. 1 and defendant No. 5 is the widow of the elder brother of defendant No. 1. Defendant Nos. 6 and 7 are daughter and son of defendant No. 5.

4. From a bare reading of the plaint, it appears that the plaintiff has sought for partition of the Schedule 'A and B' properties claiming 1/12th share and 1/4th share in Schedule 'A & B' properties respectively. Hence, it is evident that the suit is one for partition simplictor. The plaintiff was averred in the plaint that as the defendant Nos. 1 to 3, who are in-laws and husband, are attempting to sale 3 portion of the property, she has claimed partition. She has stated in paragraph-3 of the plaint that the defendant Nos. 1 to 3 (present petitioners) are entitled to 1/3rd share in Schedule 'A' property and Schedule 'B' property was recorded in the name of defendant No.1. A building was constructed over a portion of the Schedule 'B' property from the joint funds of defendant No.3, who is the plaintiff-husband, and defendant Nos. 1 and 2, who are father-in-law and mother-in-law of the plaintiff.

5. Learned counsel for the petitioners vehemently urged that the plaintiff during the life time of her husband has absolutely no interest over the suit property and she cannot claim any partition of the said property. According to the learned counsel, the Court below should have rejected the plaint in limine as the same is not in compliance with the provisions of Order 7, Rule 1 C.P.C.

6. Learned counsel for the opposite party-plaintiff, however, contended that the petitioners having not filed any application for rejection of the plaint under Order 7, Rule 11 C.P.C. this writ petition ipso facto is not maintainable. He submitted that once a suit has been admitted and summons for settlement of issues have already been issued to the defendants, it is only before the trial Court such question can be raised.

7. From the copies of the order sheets of the trial Court annexed to the writ petition, it is seen that the plaint was filed by the opposite party No. 1 on 12.5.2010. Time was sought for to pay the Court-fee. An application was filed by the plaintiff for exempting her from paying the Court fee on the ground that she is a woman. By order dated 20.5.2010, she was exempted from paying the plaint Court fee. The plaint was admitted and summons were issued to the defendants fixing 22.9.2010. Thereafter, an amendment was carried to the plaint. As by that date, the defendants have not appeared, notice of the said application for amendment was also sent to the defendants. The plaintiff thereafter took repeated adjournments to file requisites for issuance of notice for which the defendant Nos. 1 to 3 have filed the present writ petition questioning the maintainability of the suit.

8. Ordinarily this Court would have remitted the mat