HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.2785 OF 2024

ORDER:

This Revision Petition is filed assailing the order dated

26.02.2024 passed in I.A.No.4837 of 2023 in OS.No.715 of 2022 on the file of II Junior Civil Judge, City Civil Court, Hyderabad.

2. Heard Sri Syed Ashfaq Ahmed, learned counsel for revision petitioner, and Sri Tene Pandu Ranga Rao, learned counsel for respondent No.1.

3. The petitioner is defendant No.5, respondent No.1 is plaintiff and respondent Nos.2 to 5 are defendant Nos.1 to 4 in the suit. For convenience, the parties will be hereinafter referred to as they are arrayed in the suit.

4. In nut-shell, the facts of the case, required for disposal of the present Revision Petition, are that plaintiff filed the aforementioned suit against the defendants for partition of the suit schedule properties; that when the suit was pending adjudication, defendant No.5 filed an application in IA.No.No.4837 of 2023 to reject the plaint on the ground that there is no cause of action for filing the suit and as such, prolonged trial would be a futile exercise; and that the Court fee ought to have been paid under Section 32(1) of AP Court Fees and Suits Valuation Act (for short ‘the Act’) and not under Section 32(2) of the said Act.

5. In the affidavit filed in support of the application, defendant No.5 averred that he is the owner of the suit schedule property having purchased the same under registered sale deed dated 23.05.2018 bearing document No.4726/2018 from defendant Nos.1 and 2; that the plaintiff and defendant Nos.3 and 4 have filed suits in OS.Nos.137 of 2021 and 142 of 2021 before the Junior Civil Judge, Thandur, respectively, for partition and separate possession of the suit schedule properties therein and therefore, filing of the present suit is barred under Order II Rule 2 CPC, as per which, where the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Hence, defendant No.5 contended that in a suit for partition, all the properties have to be included and no separate suit(s) can be filed for different properties and prayed to allow the application.

6. A counter was filed by the plaintiff denying the averments made in the application and he further contended that Family Member Certificate issued by the MRO is fake and fabricated; that defendant Nos.1 and 2 have not disputed the date of demise of their grandparents. It was further averred that a clear cause of action for filing the suit for partition is mentioned in the plaint and further, being co-owner, the plaintiff is deemed to be in possession of the suit schedule property and therefore, the contention that the suit is liable to be rejected on the grounds of lack of cause of action and improper payment of court fee are untenable. It was further averred that the cause of action is a mixed question of fact and law, which can be decided only after full-fledged trial of the suit and therefore, the application filed by defendant No.5 is pre-mature and the same cannot be entertained.

7. The trial Court vide impugned order dated 26.02.2024 dismissed the application with an observation that in an application filed under Order VII Rule 11 CPC, it is only to be seen whether the plaintiff has shown cause of action or not and further, observed that upon bare perusal of pleadings of plaint, the cause of action arose when defendant Nos.1 to 4 refused partition of suit schedule property and to give the same for development and therefore, clear cause of action is mentioned in the suit and that the plaintiff cannot be deprived of partition of the suit schedule properties at preliminary stage, without looking into the documents filed by the plaintiff.

8. The trial Court further specifically observed that the issue as to whether the suit is barred by limitation or not is a question of fact and law, which can be decided only after fu