The main legal point established in the judgment is that the application under Order 7 Rule 11 CPC is to be decided based on the averments in the plaint and not on the basis of evidence produced by the defendants.

ORDER :

Applicants/Defendants No.1 & 2 have filed the present revision under section 115 of the CPC being aggrieved by the order dated 21.01.2019 passed by IVth Civil Judge, Class-II, Ratlam whereby the application filed under Order 7 Rule 11 CPC has been dismissed.

2. Respondent No.1 being a plaintiff filed a suit for declaration, permanent injunction and partition against the present applicants in respect of partition of ancestral property. The description of the property is given in para-2 of the plaint. Initially, the property was owned by Bhagwanlalji, the father of the plaintiff and defendants No.1 & 2, who died in the year 1993. Thereafter, mother Geetabai expired on 06.09.2016. According to the plaintiff, the partition never took place in the Joint Hindu Family. Earlier, the plaintiff filed a suit on 10.03.1995 against the present applicants and mother Geetabai for declaration and injunction in respect of the same family property but the said suit was dismissed on 16.07.1996 in default of appearance of the plaintiff. According to the plaintiff, now the defendants No.1 & 2 are going to alienate the suit property without partition, therefore, he has filed the present suit on 16.07.2018 seeking the relief of partition, permanent injunction and possession against the defendants. After receipt of the summons, the present applicants appeared before the Court and filed an application under Order 7 Rule 11 CPC seeking rejection of the plaint. In the said application, they disclosed that mother Geetabai executed a WILL dated 06.04.2010 in favour of defendant No.1. The plaintiff filed an application under Order 6 Rule 17 CPC seeking amendment in the plaint in order to challenge the WILL dated 06.04.2010 and vide impugned order dated 21.01.2019 the application has been allowed and the plaintiff has incorporated the amendment. Now the plaintiff is also challenging the validity of the WILL along with other existing reliefs in the suit. The plaintiff filed a reply to the application under Order 7 Rule 11 CPC and vide order dated 21.01.2019 the learned Court has rejected the application on the ground that whether the principle of estoppel prevents the plaintiff from seeking the relief of partition by way of subsequent suit can be ascertained only on the basis of evidence and not at this stage and on perusal of the averment of the plaint it appears that the plaintiff has a cause of action to file the present suit. Being aggrieved by the aforesaid order, the defendants have filed the present revision under section 115 of the CPC before this Court.

3. Shri P.M.Bhargat, learned counsel for the applicants submits that the respondent/plaintiff filed a suit for partition in the year 1996 and the same had been dismissed for want of evidence, therefore, the subsequent suit after 20 years for the same relief of partition is not maintainable and which is nothing but abuse of process of law. The plaintiff himself has disclosed the fact of filing of earlier suit in the plaint, hence on the basis of averment made in the plaint, prima facie, the suit is not maintainable and same is liable to be dismissed. The earlier suit was dismissed under Order 9 Rule 9 CPC, therefore, the subsequent suit is barred under the law. The relief claimed in the subsequent suit is also time barred as the plaintiff has filed the suit after a period of 20 years. In support of his contentions he has placed reliance over the judgments of the Apex Court as well as this Court in the case of Hardesh Ores (P) Ltd. vs. Hede and Company 2008 (1) MPLJ 30, Smt.Karuna Chaturvedi & Ors. vs. Smt. Sarojini Agarwal & Ors. AIR 2010 MP 109, Nand Kishore & others vs. Pandu & others 2006 (1) MPHT 261 and Ismail vs. Mst.Deokanya 1982 MPWN SN 11.

4. Shri Katkani, learned counsel for the respondentNo.1/plaintiff submits that the earlier suit was filed for the relief of permanent injunction and declaration which was dismissed in default and not on merit, therefore, the principle of res judicata wo