The main legal point established in the judgment is that the court's consideration of an application under Order 7 Rule 11 CPC is based on the plaint allegations only, and the production of evidence/document does not arise at that stage.

Manoj Misra, J. -- Heard learned counsel for the petitioners.

2. The petitioners had instituted O.S. No.31 of 2015 for declaring unregistered Will dated 14.10.1989 void as also for cancellation of sale deed dated 10.10.2011.

3. The defendants in the suit took a plea that on the strength of the aforesaid unregistered Will mutation had taken place in the year 1991 and that they had been in possession over the suit property since then, therefore, the suit was barred by limitation. Accordingly, an application under Order 7 Rule 11 CPC for rejecting the plaint was filed. It appears that while the application under Order 7 Rule 11 CPC was under consideration the plaintiffs/petitioners moved an application 23-Ga for production of the Will which was rejected by the court below by impugned order dated 17.10.2016 on the ground that application under Order 7 Rule 11 CPC is to be decided on the basis of the averments made in the plaint.

4. The order impugned has been challenged in this petition on the ground that if the Will had been produced before the court below then it could have been established that the Will was a forged Will.

5. The aforesaid contention of the learned counsel for the petitioners cannot be accepted, at this stage, because the court below has not rejected the application for all times but has rejected the same by observing that at this stage it was not necessary to call for production of the Will because the application under Order 7 Rule 11 CPC is to be adjudged on the basis of plaint averments.

6. The view taken by the court below appears to be correct because at the stage of considering an application under Order 7 Rule 11 CPC the court is required to consider the plaint allegations only. Accordingly, the question of production of evidence/document, at that stage, does not arise. In the event, the application under Order 7 Rule 11 CPC is rejected, it is always open to the petitioner to seek for production of the Will whereas, in case the application under Order 7 Rule 11 CPC is allowed and the plaint is rejected, the petitioners would have liberty to avail appropriate remedy against the said order.

7. In view of the above, I find no good reason to interfere with the order passed by the court below, at this stage, leaving it open to the petitioners to seek for production of the Will at an appropriate stage in the event the application under Order 7 Rule 11 CPC is rejected.

8. With the aforesaid observations, the petition stands disposed of.