Sima Devi And ANR v. Stya Bhama Kumari Gupta @ Stya Bhama Kumari And ORS

Patna High Court C.Misc. No.817 of 2016 (2) dt.03-10-2016

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.817 of 2016 ====================================================== Sima Devi & Anr .... .... Appellant/s

Versus

Stya Bhama Kumari Gupta @ Stya Bhama Kumari & Ors .... .... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Pandit Jee Pandey For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 03-10-2016 Heard the learned counsel, Mr. Pandit Jee Pandey for the petitioners.

Perused the impugned order dated 03.05.2016 passed by learned Munsif, Danapur in Title Suit No.6 of 2011 whereby the learned Court below rejected the application filed by the defendant-petitioner under Order 7 Rule 11 C.P.C. The learned counsel for the petitioners submitted that the plaintiff has got no cause of action and that the suit is barred by law but the learned Court below rejected the same by the impugned order. According to the learned counsel, the plaintiffs are the purchasers from the judgment debtor in Title Suit No.143 of 1982. The plaintiffs had knowledge about the said suit wherein the vendor of the plaintiffs fought upto the second appellate court but lost and thereafter this suit has been filed by the purchasers. Perused the application filed by the petitioners under Order 7 Rule 11 C.P.C., which is Annexure 2 to this civil

Patna High Court C.Misc. No.817 of 2016 (2) dt.03-10-2016 miscellaneous application.

From perusal of the application, it appears that there is no averments regarding the cause of action as provided under Order 7 Rule 11(a) C.P.C. or the suit is barred under any law as provided under Order 7 Rule 11(d) C.P.C. From perusal of the impugned order, it appears that argument was advanced before the Court below to the effect that plaintiff has got no cause of action to file the suit. In my opinion, this is not a ground for rejection of the plaint under Order 7 Rule 11(a) which specifically provides that if the plaint does not disclose a cause of action, the plaint is to be rejected.

So far the question of bar under any law is concerned, except the merit of the case that earlier suit was decided by the High Court in Second Appeal and that the plaintiffs had the knowledge and that they are the purchasers, in my opinion, this is not a question of law. The same can only be decided on the basis of the evidence that may be brought on record by the parties. Therefore, this is also not a case under Order 7 Rule 11(d) C.P.C.. Thus, I find no reason to interfere with the impugned order and accordingly, this Civil Miscellaneous application is dismissed.

Saurabh/- (Mungeshwar Sahoo, J) U T