Issues of family property disputes require trial for resolution; procedural inadequacies do not justify outright dismissal.

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

1. This petition is filed by the defendant, being aggrieved by the order dated 28.08.2024, passed in O.S. No.1 of 2019 rejecting his application in I.A. No.11, filed by him under Order VII Rule 11 of the CPC read with Section

151 of the CPC.

2. The above suit in O.S. No.1 of 2019 is filed by the respondent-plaintiff for declaration and injunction contending inter alia that there was a partition of family properties taken place in the year 1988, and in terms of which the suit properties were allotted to his share, and that he has been in possession and enjoyment of the same. That the defendant without his knowledge or consent, obtained mutation of his name in the revenue records in respect of the suit properties in the year 2002 alleging that a partition had taken place in the year 2001. That the plaintiff learnt about the same and filed his objection during the last week of November 2018. Hence, the suit for declaration and injunction.

3. The written statement is filed by the defendant contending that the partition had indeed taken place in the year 2001 and in terms of which the suit properties were allotted to the share of the defendant. He also contends that since the suit is one for declaration, the Court fee was not paid properly.

4. On the same lines, the application under Order VII Rule 11 of the CPC is filed seeking rejection of the plaint. The trial Court by the impugned order, rejected the said application, but directed the plaintiff to pay the deficit Court fee of ₹1,21,62 paise.

5. Being aggrieved by the said order, the petitioner is before this Court.

6. Learned counsel for the petitioner, retreating the grounds, urged in the memorandum of petition, submits that the very averments made by the plaintiff that there was a partition in the year 1988, and that he filed objection in the last week of November 2018, would indicate that the suit is hopelessly barred by limitation. He submits that since the trial Court itself has found that the plaintiff had not paid adequate Court fee, the plaint ought to have been rejected for non-payment of court fee.

7. Heard. Perused the records.

8. The averments made in paragraph Nos.2 and 3 of the plaint would indicate that the plaintiff is claiming prior partition having taken place on 19.01.1988, in terms of which he was allotted the suit properties to his share. The averments made in paragraph No.3 of the plaint would indicate that without his knowledge and consent, the defendant had allegedly obtained mutation of his name in respect of the suit properties on the pretext of the same having been allotted to him in the partition alleged to have taken place during the year 2001. The plaintiff has further pleaded that on learning about the said mutation entries, he had filed objections in the last week of November 2018. It is these three instances based on which the plaintiff has sought the relief of declaration of his title and consequential relief of injunction.

9. As rightly taken note of by the trial Court, these are the mixed questions of fact and law required to be determined after the trial. The same therefore cannot be found fault with.

10. As regards the payment of Court fee is concerned, the ground for rejection of the plaint for non- payment of Court fee would arise only when the plaintiff is called upon to pay the Court fee by the court and he fails to pay the same within the time provided by the Court. In the instance case, the trial Court has merely permitted the petitioner to pay the deficit Court fee. Said order cannot form a ground for rejection of plaint as contemplated under Order 7 Rule 11(c) of the CPC. Accordingly, the pe