IMPORTANT POINT
Rejection of plaint – For decision on application under Order 7 Rule 11, CPC, Court is required to go through averments as made in plaint only – Whether said averments are incorrect/correct, same cannot be considered at stage of deciding application under Order 7 Rule 11, CPC unless and until same is evident on face of it.

ORDER

The present revision petition has been preferred against the order dated 01.06.2023 passed by the learned Family Court (Additional District Judge First) Abu Road in Civil Matrimonial Case No.05/2023 whereby the application under Order 7 Rule 11, CPC as filed on behalf of the defendant husband has been rejected.

2. The ground as raised in the application was that the Court at Abu Road does not have jurisdiction to hear the petition under Section 13(1) of Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act of 1955’) as preferred by the plaintiff as the plaintiff and the defendant never resided at Abu Road.

3. Vide the order impugned, the Court below, while referring to the pleadings as made by the plaintiff, observed that the plaintiff wife came with the specific averment that the plaintiff and the defendant resided at Abu Road just prior to separation. With the said observation, the Court proceeded on to reject the application as preferred by the defendant.

4. In the specific opinion of this Court, the said observation and the rejection of the application by the Court below does not deserve any interference as the same is totally in consonance with law.

5. A bare perusal of the plaint as annexed along with the present petition makes it clear that the plaintiff made the following averments in her plaint:—

“(Matter in Other Language)”

6. In view of the above pleadings as made by the plaintiff, it is clear that the averment regarding residence of the parties at Abu Road has specifically been made in the plaint. For the decision on an application under Order 7 Rule 11, CPC, the Court is required to go through the averments as made in the plaint only. Whether the said averments are incorrect/correct, the same cannot be considered at the stage of deciding the application under Order 7 Rule 11, CPC unless and until the same is evident on the face of it. The same could be a subject of adjudication only after the evidence being led on the same.

7. The averments of learned counsel for the petitioner that the application under Section 13-B of the Act of 1955 had earlier been preferred by both the parties jointly at Udaipur would be of no consequence for the purposes of the application under Order 7 Rule 11, CPC. The document, if any, in support of the ground as raised by learned counsel for the petitioner could be considered by the Court only on the evidence being led on the issue and the document being placed on record/exhibited. Therefore, the finding as reached by the Court below does not deserve any interference.

8. However, as the objection as raised by the defendant goes to the root of the jurisdiction of the Court, it would be adequate and proper that the said issue is decided as a preliminary issue by the Court below.

9. In view of the same, the present revision petition is disposed of with a direction to the learned Court that if an objection regarding the jurisdiction of the Court is raised in the written statement by the defendant, the same be decided as a preliminary issue.

10. Stay petition and all pending applications, if any, stand disposed of.