Civil Procedure Code, 1908
Order 7 Rule 11—Dismissal of suit seeking partition—Appeal—For the purposes of deciding an application under Order 7 Rule 11 of CPC, only averments made in the plaint have to be looked at and pleas taken by defendant in the written statement cannot be considered—Whether averments made by appellant in amended plaint were in the nature of an afterthought or mala fide would not be relevant for rejecting a plaint under Order 7 Rule 11 of CPC—As regards the finding in the impugned judgment that there cannot be two suits for partition of same properties, the appellant has clearly stated that whereas earlier suit filed by first respondent was only to seek partition of three properties, the suit filed by appellant was not limited to the relief of partition—Further reliefs of declaration, possession as well as permanent and mandatory injunction that were sought in the said suit—Suit could not have been rejected under provisions of Order 7 Rule 11 of CPC—Impugned judgment is set aside and suit filed by appellant is restored to its original number—Appeal allowed.
[Paras 15 & 16]