A suit for declaration of a specific share and possession is maintainable even if not explicitly framed as a partition suit; technicalities in the prayer or court fee payments should not lead to the rejection of a plaint if a cause of action is disclosed.

THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

CIVIL REVISION PETITION No.1614 OF 2022

ORDER:

This civil revision petition is filed under Article 227 of the Constitution of India against the order dated 13.06.2022 dismissing the I.A. No.193 of 2019 in O.S. No.174 of 2019 on the file of the Court of III Additional District Judge, Guntur (old O.S. No.576 of 2016 on the file of the Court of IV Additional Senior Civil Judge, Guntur) filed by defendants 1 and 2 under Rule 11 of Order VII read with Section 151 of the Code of Civil Procedure, 1908 (‘CPC’) to reject the plaint.

02. The petitioners are defendants 1 and 2, 1st respondent is the plaintiff and respondents 2 to 4 are defendants 3 to 5.

03. The case of the plaintiff is that the 1st defendant is a member of joint family of the plaintiff and defendants 2 to 4 and that the 1st defendant purchased the plaint schedule property under a registered sale deed on 16.09.2002 with joint family funds to the tune of Rs.5,50,000/- out of the sale consideration of Rs.11,00,000/- as clearly stated in the sale deed, but this property was not shown in the suit for partition filed by him in O.S. No.61 of 2016 on the file of III Additional District Judge, Guntur, against the plaintiff herein and the defendants 3 to 5 herein. The plaintiff herein filed the suit in O.S. No.174 of 2019 (old O.S. No.576 of 2016) against the defendants 1 to 5 with a prayer to grant decree declaring that the plaintiff is only absolute owner of 1/10th share in the plaint schedule property and put the plaintiff in possession free from all encumbrances. The plaintiff paid court fee under Section 24(a) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (‘APCF & SV Act’).

04. Defendants 1 and 2 filed I.A. No.193 of 2019 on the ground that the plaintiff has no cause of action to file the suit, stating as follows:

The suit is based on a recital in the document dated 16.09.2002 bearing N.6498 of 2002. The plaintiff stated that the 1st defendant is a joint family member along with defendants 2 to 4. 2nd defendant is the wife of the 1st defendant and not a member of the joint family. The plaintiff further stated that the suit schedule property belongs to the joint family consisting of the plaintiff and defendants 2 to 4 and they have equal right along with the 1st defendant. Defendants 1 and 2 do not accept that the suit schedule property was acquired with joint family funds and stated that if it is a joint family property, the suit must be filed for partition, but not for possession of 1/10th share, which cannot be granted without seeking partition. Therefore, there is no cause of action for the suit. The court fee payable is different if partition is also pleaded.

05. The petition was opposed by filing counter of the plaintiff/1st respondent stating that the allegations in the petition are untrue and invented to file a petition to harass the plaintiff and that there is no flaw in filing this suit. He also stated that the remedy under Rule 11 of Order VII CPC is harsh and cannot be granted automatically. It is also stated that the present petition is a counter blast to the petition filed by this respondent/plaintiff under Rule 11 of Order VII read with Section 151 CPC in O.S. No.61 of 2016, which was filed suppressing the true facts and the schedule property in the present suit and also as this respondent/plaintiff and the 2nd respondent/3rd defendant herein filed petitions in I.A. Nos.258 of 2018 and 259 of 2018 to direct the 1st petitioner/ 1st defendant herein to deposit their share of monthly rents for illegal occupation of defendants 1 and 2 herein.

06. 2nd respondent/ 3rd defendant also filed counter with the same averments.

07.