The High Court · 2025

Judgment

2. Mrs. Fareeda Sultana, Wo Mohd. Altaf Ahmed, Aged 49 years, Occ. Household, R/o H.No.'18-8-4501P.140, Raza Nagar, Edi 9azar, Hyderabad. Mrs. Syeda Nazira Sultana, Wo Syed Zaheeruddin, Aged. 52 years, Occ. Household, R/o H.No.17-B-17811, Chowni Nade Ali Baig, Malakpet, Hyderabad.

3. [t/rs. Rasheeda $ultana, Wo Late lVlir fuluzaffer Hussain, Aged 62 years, Occ. Household, R/o H.No.B-2-16, Old Bowenpally, Secunderabad. 4 Mrs. Zubaida Sultana, Wo Mohammed Shafeeq Ahmed, Aged .47 years, Occ- Household, R/o H.No.11-3-131151|b, Bharath colony, A/ouzampura, New Matlepally, Hyderabad. ... Respondents/Plaintiffs Syed Siraj Ahmed, S/o Late Shabbir Ahmed, Aged .55 years, Occ: Agriculture

6. Syed BasheerAhmed, S/o Late Syed ShabbirAhmed, aged 62 years, Occ. Business, Both are R/o.H.No. 1-27, Mangalpally(v), lbrahimpatnam(m), Ranga Reddy District.

7. Smt.l/uneera Sultana, Wo Late Syed Azheruddin, Aged 58 years, Occ. Housewife, R/o H.No.17-8-246155, Bagh e Jahara, ft/alakpet, Hyderabad ...Respondents/Defendants No.2 to 4 lA NO: 1 OF 2022 Petition under section 151 cpc praying that in the circumstances stated rn the affidavit filed in support of the petition, the High court may be pleased to siay of all further proceedings in o.s.No.233 of 2016 on the file of Additional senror Civil Judge, R.R District at lbrahimpatnam, till the disposal of the main suit Counsel for the Petitioner :Sri M A K Mukheed Counsel for the Respondents1,2,4,5&6: Sri A K Jayaprakash Rao The Court made the following; ORDER ( I I I I I THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION No.3 lL of 2022 ORDER: This Civil Revision Petition is filed against the order dated t4.1O.2022 passed in 1.A.No.272 of 202L in O.S.No.233 of 20t6 on the file of the Additional Senior Civil Judge, Ranga Reddy District, Ibrahimpatnam, wherein the petition filed by defendant No.1 under Order VII Rule 11 CPC read with Section 151 CpC to reject the plaint, as no cause of action is surviving in the suit, was dismissed.

2. Brief facts of the case are that the plaintiffs and defendants, who are brothers and sisters, filed a suit for partition. The petitioner/defendant No. 1 claims that the property in question was gifted to him by their father, Sri Syed Shabbir Ahmed, through a gift deed dated 30.11.1995, and the property was mutated in his name. As a result, defendant No.1 is the absolute owner of the property, and it is not available for partition. The petitioner/defendantNo.l further claims that the respondents/plaintiffs have not filed any evidence to show that 2 the property is matruka property (inherited property), and further submitted that the property was ancestral, and the parties are already got their share during their father's lifetime. Additionally, the plaintiffs' amendment petition regarding the property boundaries is flawed, and there is no cause of action remaininq for partition. Therefore, the petitioner/defenda nt No.1 seeks to reject the plaint.

3. On the other hand, respondent No.2/plaintiff No.2 filed counter affidavit contending that the petition is not maintainpble and is liable to be dismissed. She claims that the cause of action is clearly outlined in the suit, and the alleged gift deed in favour of defendant No.1 is to be proved by defendant No.1. Respondent No.2/plaintiff No.2 submits that there are no grounds to re1ect the plaint.

4. The trial Court, after hearing both sides, dismissed the petition stating that the contention raised by the petitioner/defend a nt No.1 does not fit within the grounds under Order VII, Rule 11 CPC. Aggrieved by the same, the present Civil Revision Petition is filed. 3

5. Heard Sri M.A.K. Mukheed, learned counsel for the petitioner/defendant No.1 and Sri A.K. Jayaprakash Rao, learned counsel for the respondents. Perused the material on record.

6. The Petitioner herein who is defendant No.1 submits that respondent Nos. 1 to 4 (Plaintiff Nos.1 to 4) filed a suit for partition, but failed to mention the boundaries of the schedule property in the plaint. The petitioner raised this issue in the written statement and in the I.A. Respondent Nos. to 4 filed an Amendment Petition to add boundaries of suit land. As .r.n, tf," petitioner filed a counter to the Amendment petition stating that the respondents have no locus standi to file the amendment petition, as it would change the nature of the suit. The petitioner also claims the Court did not address this issue in its order. The petitioner submits that the Court passed an arbitrary order, stating the written statement was not filed, despite it being submitted on 30.08.2016. The petitioner also points out that the Amendment Petition was filed in the year 2020, indicating the Court did not properly review the records. The petitioner has filed a petition under Order VII, Rule 11(a) 4 CPC to reject the plaint, stating that there is no cause of action. The petitioner claims that the property was already divided by their father, leaving no land available for partition, and that the suit schedule property exclusively belongs to the petitioner' The petitioner contends that respondents No.1 to 4 filed the suit only to harass the petitioner, resulting in their loss of right to sue. The petitioner further states that the suit is frivolous and there is no cause of action and further submits that the suit is barred by law as the plaint fails to specify the boundaries of the suit schedule property, and the survey numbers mentioned are incorrect. As such, requested the Court to set aside the order of the trial Court by allowing the petition.

7. On the other hand, learned counsel for the respondents would submit that while dealing with the petition under Order VII, Rule 11 CPC, the Court has to see the averments in the plaint. As there is cause of action to file the suit, non- mentioning of boundaries of the suit schedule property is not a ground for rejecting the suit and the remaining disputed facts I I 5 ,l 1 cannot be decided while disposing the petition under Order VII, Rule 11 CPC. As such, prayed the Courtto dismiss the petition.

8. Having regard to the submissions made by both the parties and the material on record, the main contention of the petitioner herein is that the suit is a vexatious suit and the face of the suit shows that it is filed without mentioning the boundaries of the suit schedule property and when the petitioner herein filed written statement stating that there are no boundaries in the suit schedule property, the respondents herein filed I.A.No.33d of 2O2O for amendment of the plaint under Order 6, Rule 17 CPC, wherein the trial Court, while discussing the petition, observed that as on the date, there is no written statement, as such, it will not cause any prejudice to the petitioner herein. Whereas, the petitioner herein filed written statement on

30.08.2016, which was not considered by the trial Court and it only observed that as there is no written statement, the petition is allowed. Going through the said contention, the plaint is filed for partition of the property and it was mentioned in the plaint that the property belongs to late Syed Shabbir Ahmed, who was b the absolute owner and possessor of the suit schedule property and the father of the plaintiffs and the defendants, and the said Syed Shabbir Ahmed, died on 02.09.2013 at the age ofgB years leaving behind the plaintiffs and defendants as his sole and exclusive legal heirs. According to the plaintiffs, the cause of action arose on 02.09.2013 when their father died, and thereafter, they request defendant Nos.1 to 3 for partition of the suit schedule property finally and when defendant Nos.1 to 3 brought the intending purchasers at suit schedule property to alienate the suit schedule property, which shows that the property belongs to the father of the plaintiffs and defendants, and prayed to pass a preliminary decree by allowing 1/11 share each to plaintiffs and defendant No.4, being the daughters and 2/lL share to defendant Nos.1 to 3 being the sons in respect of the suit schedule property.

9. Apparently, the cause of action was mentioned by the plaintiffs except the fact that the boundaries of the suit schedule property were not mentioned and the plaintiffs mentioned the survey numbers of the suit schedule property and also the place 7 where the property is situated. Order VII Rule 3 CPC says that a plaint must contain correct description of the subject matter of the suit and if it is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers, which shows that the suit property can be identified by the boundaries or numbers, and the plaintiffs herein already specified suit survey number. Therefore, there is no defect in the plaint so that it can be rejected.

10. The contention of the petitioner that the suit is barred by Iaw as the plaint is not having boundaries for the suit schedule property and the survey numbers which are mentioned are also wrong, is not a ground for rejection of the plaint. The petitioner submits that the property belongs to him and it is his exclusive property and he has given it for development and admittedly, at no point of time, the respondents hold the possession and respondent No.1 paid the Court fee of Rs.200/- under Section 34(2) ot APCF and SV Act, which is insufficient on that ground 8 plaint has to be rejected, whereas insufficiency of the Court fee is a curable defect. According to the petitioner herein, he is the exclusive possessor. Whether he is the exclusive possessor or not is a disputed fact which can be decided by the trial Court after trial. Therefore, it is not a ground for rejection of the plaint.

11. Learned counsel for the petitioner has relled on the judgment of Sr'rpreme Court in Ramisetty Venkatanna and Anr v. Nasyam Jamal Saheb and othersl on the ground thpt vexatious suit cannot be entertained and if the suit which is filed creating illusory of a cause of action, the Court will nip it in the bud at the fir:;t hearing by examining the party searchingly under Order 10 CPC. Whereas, the said judgment is not applicable to the present case as there is cause of action for filing the suit. The learned counsel also relied on the judgment of Madras High Court in Narasus Coffee Company; P Sivanadam; Lalitha; Srudeep v. R P Sarathy; Jayashree; 12023 Law suit(sc)452 I I i I I 9 Latha2 and paragraph No.41 of the said judgment is extracted hereu n d er: "41. The plaintiff had admitted that he was a partner in the firm, along with the second petitioner and the respondents 2 and 3 and the suit schedule properties were the properties of the said partnership firm 'Narasus Coffee Company and that the first respond en t/p la intiff and the other respondents 2 and 3 retired from the partnership firm in the year 2006, hence, the first respondent/pla intiff cannot file a suit, simply for seeking partition in the year 2009, after getting the amount and also getting properties, by way of registered sale deeds, executed by the second revision petitioner and other partners in favour of the first respondent/ plaintiff. The relief sought for in the suit, seeking partition cannot be construed as a remedy. available under the common law. since the same is governed by the Indian Partnership Act. If at all, the plaintiff could have filed suit only for dissolution of firm and rendition of accounts or settlement of balance, if any. pursuant to his retirement from the partnership firm, as per Partnership Act and not a suit for partition, after his retirement against the MOU. On the aforesaid circumstances, the suit is not legally maintainable, for want of legally acceptable cause of action, hence, this Court is of the view that as per Order 7 Rule 11 (a) of the Code, the plaint has to be rejected, on the ground that there is no legal cause of action available for seeking the relief of partition by a retired partner of the firm. after getting consideration for his share, on account of his retirement from the firm and permitting other partners to continue the firm. It is also argued on behalf of the revision petitioners that the suit was filed in the year 2009, seeking partition of the property belonged to the firm by the plaintiff, who had retired '2014 Law Suit(Mad)809 10 from the firm in 2006, after getting consideration by cash and also immovable properties by registered sale deeds, wh ich ca nnot be a common law remedy but contrary to the Indian Partnership Act and as such, barred by law, hence, the plaint has to be rejected under Order 7 Rule 11 (d) of the Code...

12. The observation in the above said judgment is that respondent Nos.2 and 3 had retired from partnership in the year 2006. Hence, they cannot file a suit for partition in the year 2009. Whereas in the present case, the plaintiffs and the defendants are sons and daughters of the original owner of the property. As such, the said judgment is not applicaOle to tfre present case, He also relied on the judgment of Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali3, wherein the observation of the Court was that there is a delay in filing the suit and cause of action arose in 2009 and the suit was instituted in the year 2Ol4 and on that ground, the plaint was rejected. In the present case, the rejection of plaint is sought on the ground that there is no cause of action. Therefore, the said judgment is not applicable to the present case. '1zozo1 z scc :ee t 71

13. On the other hand, the learned counsel for the respondents relied on the judgment of Madhya pradesh High Court in Smt. Ameena Bee V. Abdul Jabbar (Misc. Petition No.2419 of 202L dated 05.10.2023) at paragraph No.10, wherein it was held as under: "1O. Further, it is apparent that the present suit at an initial stage, the written statement has been filed by the petitioner defendant and trial has not commenced. The petitioner defendant has opportunity to file application for consequential amendment and no injustice of irreparable loss is caused to the petitioner/defenda nt on account of the proposed amendment. In the considered opinion of this Court, proposed amendment is also necessary for complete and effective adjudication of the dispute between the parties and to avoid multiplicity of proceedings It cannot be said that the proposed amendment changes the nature of the suit. It only cla rifies/changes the description of property and not the property itself.,, L4. Learned counsel for the respondents submitted that in consequential amendment can be allowed if no injustice of irreparable loss is caused to the petitio nerldefenda nt No.1 on account of proposed amendment and the proposed amendment is also necessary for complete and effective adjudication of dispute between the parties. I t2 -!

15. Having seen citations relied upon by the learned counsel for the petitioner and the plaint averments itself show that there is cause of action to file a suit and it is a comprehensive partition suit, which is filed against the defendants claiming that the suit schedule property belongs to the father of the plaintiffs and the defendants. Though petitioner herein contended that property was gifted in favour of defendant No.1 in the year 1995 and it is not available for partition is a disputed fact. Whether the property is a matruka property and plaintiff is entitled for the partition has to be decided after full fledged trial. While dealing with the petition under Order VII Rule 11 Court has to see the plaint averments only not the written statement or documents of defendant. Therefore, this Court is of the view that the plaint in the present case cannot be rejected on the ground of cause of action and there is no illegally in the impugned order of the trial Court and there are no merits in the present revision petition and is liable to be dismissed.

16. With these observations, the Civil Revision petition is dismissed. No order as to costs. 13 Miscellaneous applications, iF any, pending in this Civil Revision Petition, shall stand closed. Sd/- P. CH. NAGABHUSHAMBA ASSISTANT REGISTRAR //TRUE COPY// CTION OFFICER \ To,

1. The Additional Senior Civil Judge Ranga Reddy at lbrahimpatnam 2. One CC to Sri M A K Mukheed, hdvocate tOpUCl 3. One CC to Sri A K Jayaprakash Rao, Advocate 1OeUC1 4. Two CD Copies ADI(gh UA HIGH COURT DATED:02 t01t2025 ORDER CRP.No.3011 of ZO22 F 1HE Li 0 4 tllll ?iJ:1S I l DISMISSING THE CRP WITHOUT COS}TS rlto,+,{ .W