IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL REVISION No.24 of 2020

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Jagdish Pandey, Son of Late Ram Sakal Pandey, Resident of Village- Ameya,

P.S.- Kateya, District- Gopalganj.

... ... Petitioner/s

Versus

Dr. Mahima Pandey, Son of Late Ramsakal Pandey, resident of Village-

Ameya, P.O. Mahuawan, P.S.- Kateya, District- Gopalganj and 8 Lessinghom

Road, Widness, Cheshire WA 89 FU, England.

... ... Respondent/s

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Appearance :

For the Petitioner/s

:

Mr. Prince Kumar Mishra, Advocate

For the Respondent/s

:

Mr. Sanjay Kumar Pandey No.5, Advocate

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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA

ORAL ORDER

7

14-09-2023

Heard learned counsel for the parties.

2. This Civil Revision application has been filed

against the order dated 28.01.2020 passed in Partition Suit No.

144 of 2012 by learned Sub-ordinate Judge-IX, Gopalganj

whereby and whereunder the application of petitioner/defendant

seeking rejection of plaint has been rejected.

3. The brief facts of the case, according to the petition,

are that plaintiff/respondent filed Partition Suit No. 144 of 2012

for getting his share in ancestral properties in which defendant

filed his written statement taking various objection including

that plaintiff has been living in United Kingdom since last 45

years and practicing there and he is now British Citizen and the

Patna High Court C.R. No.24 of 2020(7) dt.14-09-2023

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ancestral property has already been partitioned between plaintiff

and defendant long back and they are living separately. The

issues were framed and evidence on behalf of plaintiff have

already been closed and the suit is pending for defendant

evidence. The petitioner filed a petition dated 29.08.2019 for

rejection of plaint on the grounds inter-alia that plaintiff has

given his wrong address and also has not disclosed the fact that

he is resident of England and thus concealed this fact and

violated the provision of Order 7 Rule 1 (b) of C.P.C. The

plaintiff filed rejoinder to the same and stated that he is

Overseas Citizen of India Card holder and he has given his

ancestral address which is not in violation of Order 7 Rule 1(b)

C.P.C. The learned Court below vide the impugned order

rejected the said petition of the petitioner.

4. Learned counsel for the petitioner submits that the

learned Court below failed to appreciate that plaintiff has

suppressed correct residential and nationality particulars and has

given wrong residential address and thus violated the mandatory

provisions of Order 7 Rule 1(b) C.P.C. and thus suit is liable to

be rejected under Order 7 Rule 11 C.P.C. He further submits that

the learned Court below failed to appreciate that in absence of

true particulars about the plaintiff, the suit is not maintainable

Patna High Court C.R. No.24 of 2020(7) dt.14-09-2023

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and barred by the law.

5. On the other hand, learned counsel for the

respondent submits that the petition of the petitioner for

rejection of plaint under Order 7 Rule 11 C.P.C. is misconceived

and devoid of any merit and the learned Court below has rightly

rejected the said petition. Further, he submits that at the stage of

exercise of power under Order 7 Rule 11(d) C.P.C., the Court

has to examine the plaint and the plea taken by defendant in

written statement would be irrelevant. The suit is not barred by

any law and there is no illegality in the impugned order which

requires any interference by this Court.

6. The law is well settled that only the averments in

the plaint can be looked into while deciding the application

under Order VII Rule 11 C.P.C. The broad principles on issue of

rejection of plaint under Order VII Rule 11 (d) C.P.C. can be

culled out:

(i) The averments made in plaint

are germane have to be taken as correct;

(ii) The