Patna High Court – Orders
Ramji Prasad vs Munna Kumar And Anr on 17 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.123 of 2017
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Ramji Prasad, son of Late Sitasharan Mahto, Resident of Village- Pura, P.O.
Mundachh, P.S.- Telhara, District- Nalanda.
... ... Petitioner/s
Versus
1. Munna Kumar, S/o Ramji Prasad, Resident of Village- Pura, P.O.
Mandachh, P.S. Telhara, District- Nalanda.
2. Vishwajit Kumar @ Rahul, S/o Ramji Prasad, Resident of Village- Pura,
P.O. Mandachh, P.S.- Telhara, District- Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rewti Kant Raman, Advocate
Mr. Piyush Kumar Pandey, Advocate
For the Respondent/s : Mr. Niraj Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV ORDER
14 24-02-2026
Heard learned counsel for the petitioner as well as
learned counsel for the opposite party.
2. This Civil Revision application has been filed under
Section 115 of the Code of Civil Procedure, 1908 (hereinafter
referred to as ‘CPC‘) against order dated 07.06.2017 passed in
the Title Suit No. 25 of 2014, in the learned Munsif, Hilsa
(hereinafter referred to as ‘Trial Court’) whereby and
whereunder the learned Trial Court has rejected the petition
dated 11.01.2017 filed under Order VII Rule 11 of the CPC.
3. The factual matrix, in brief, is that the plaintiff
(opposite party) instituted Title Suit No. 25 of 2014 for
declaration that the Schedule II property constitutes joint family
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property, for allotment of 1/4th share, for preliminary and final
decree of partition through a Pleader Commissioner, and for
declaration that alienation made by defendant no. 1 without his
consent are not binding upon him. According to the plaint, the
common ancestor Kailu Mahto died leaving descendants
including Ramji Mahto (defendant no. 1), who had two sons
from two wives. It is alleged that family properties including
lands in Village Pura, Baddi, and property at Biharsharif, along
with a tractor, form part of joint family assets. The plaintiff
sought partition on the ground that defendant no. 1 was
neglecting family responsibilities and attempting to dispose of
joint property in favour of defendant no.3. The defendants
entered appearance contending, inter alia, that the suit suffers
from non-joinder of necessary parties, having certain property
being self-acquired, and that a prior partition had already taken
place. They further pleaded that Title Suit No. 6 of 1999
involving similar issues is pending between the parties, hence
the present suit is not maintainable. On this basis, the defendants
moved an application under Order VII Rule 11 CPC for
rejection of the plaint on the ground of absence of cause of
action and pendency of earlier litigation.
4. Considering the facts and circumstances of the
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case, the learned Trial Court, vide impugned order dated
07.06.2017 passed in the Title Suit No. 25 of 2014, rejected the
application filed by the petitioner/defendant as not maintainable
and held that the grounds given in petition of the defendant
(petitioner herein) is not according to the grounds of rejection
given in Order VII Rule 11 of the CPC. It further held that the
grounds raised by the defendant are mixed question of law and
fact and therefore, the same could be decided through the
adjudication of the issue.
5. Aggrieved by the impugned order dated
07.06.2017 passed by the learned Trial Court in Title Suit No.
25 of 2014, the petitioner has preferred this Civil Revision
application before this Court.
6. Learned counsel for the petitioner assailed the
impugned order passed by the learned Trial Court and the
application dated 19.01.2017 filed by the petitioner under Order
VII Rule 11 of the CPC seeking rejection of the plaint was
illegally rejected by the learned Trial Court. It is submitted that
the plaintiff/opposite party had instituted Title Suit No. 25 of
2014 for declaration of Schedule II property as joint family
property and for partition to the extent of 1/4 th share along with
ancillary reliefs, despite the fact that an earlier partition suit
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being Title Suit No. 06 of 1999 between the same parties
concerning the same subject-matter is already pending
adjudication. It is further submitted that the plaintiff/opposite
party, being a party to the earlier suit, could very well sought all
appropriate reliefs therein and the institution of the subsequent
suit is wholly redundant, vexatious and without any fresh cause
of action, thus attracting the bar under Section 10 of the CPC
and constituting an abuse of the process of the court.
6.i. Learned counsel for the petitioner further
submitted that the learned Trial Court failed to appreciate that
the plaint, on its own averments, does not disclose a sustainable
cause of action in view of the pendency of Title Suit No. 06 of
1999 and the alleged prior partition through Panchayati dated
30.11.2011. It is submitted that the very foundation of
maintainability stood shaken, and therefore the plaint was liable
to be rejected at the threshold under Order VII Rule 11 of the
CPC. It is submitted that the learned Trial Court committed a
jurisdictional error in observing that the points urged and the
documents produced by the defendants were not fit for
consideration at this stage, as the issue of maintainability and
absence of cause of action goes to the root of the matter and can
be examined at the initial stage itself. Moreover, it is submitted
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that the impugned order is cryptic, non-speaking and passed
without assigning cogent reasons, thereby suffering from
material irregularity and perversity in exercise of jurisdiction.
6.ii. Learned counsel for the petitioner also assailed
the impugned order on the ground of non-joinder of necessary
and proper parties. It is submitted that in a suit for partition, all
co-sharers are necessary parties, yet the heirs of Ramkeshwar
Mahto, Ram Hari Mahto and the three daughters of the common
ancestor, namely Bedami Devi, Parmeshwari Devi and Ramkali
Devi, were not impleaded, rendering the suit defective and not
maintainable in law. It is further submitted that the learned Trial
Court erred in relying upon the authority cited in the impugned
order, though the factual matrix of that case is wholly
distinguishable and inapplicable to the present controversy. The
failure to consider the effect of the pending earlier suit, the plea
of absence of cause of action and the objection regarding non-
joinder of necessary parties amounts to failure to exercise
jurisdiction vested in the learned Trial Court.
6.iii. In support of his submissions, learned counsel
for the petitioner has placed reliance upon T. Arivandandam v.
T.V. Satyapal and Anr., reported in (1977) 4 SCC 467, wherein
the Hon’ble Apex Court held that if clever drafting creates an
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illusion of a cause of action, the court must nip it in the bud at
the first hearing; Dahiben v. Arvindbhai Kalyanji Bhanusali
(Gajra) and Ors., reported in (2020) 7 SCC 366, wherein it was
reiterated that the power under Order VII Rule 11 of the CPC is
intended to prevent vexatious litigation; and
Kanakarathanammal v. V.S. Loganatha Mudaliar and Anr.,
reported in 1963 SCC OnLine SC 154, wherein it was held that
in a partition suit all co-sharers are necessary parties and
absence thereof is fatal. Learned counsel therefore submitted
that the impugned order dated 07.06.2017 is liable to be set
aside and the application under Order VII Rule 11 of the CPC
deserves to be allowed.
7. Per contra, learned counsel for the opposite
party/plaintiff supported the impugned order dated 07.06.2017
passed by the learned Trial Court in Title Suit No. 25 of 2014
and submitted that the impugned order is legal, proper and does
not call for any interference in revisional jurisdiction. It is
submitted that the scope of Order VII Rule 11 of the CPC is
limited to the averments made in the plaint alone, and at this
stage the defence taken in the written statement or documents
produced by the defendants cannot be looked into. It is
submitted that the plaint clearly discloses a cause of action,
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namely, the assertion of joint family property, denial of his
legitimate 1/4th share, alleged neglect by the petitioner and
apprehension of alienation of joint family property without
consent. It is further submitted that mere pendency of an earlier
suit being Title Suit No. 06 of 1999 does not automatically bar
the present suit, particularly when the cause of action and reliefs
claimed are distinct and relate to continuing denial of share and
subsequent acts of the defendants. It is, moreover, submitted that
the plea under Section 10 of the CPC or alleged prior partition
are mixed questions of fact and law which can only be
adjudicated upon evidence during trial and cannot be a ground
for rejection of plaint at the threshold.
7.i. Learned counsel for the opposite party further
submitted that the learned Trial Court has rightly held that the
objections raised by the defendants, including alleged non-
joinder of parties and pendency of earlier proceedings, do not
fall within the strict parameters of Order VII Rule 11 of the
CPC. It is submitted that the question whether all necessary
parties have been impleaded or whether there has been a prior
partition are issues to be framed and decided upon appreciation
of evidence and cannot be adjudicated summarily. He further
submitted that the power under Order VII Rule 11 of the CPC is
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drastic and must be exercised sparingly, only when the plaint is
manifestly barred by law on its face. It is lastly submitted that in
the present case, since the plaint discloses triable issues relating
to title, unity of possession and entitlement to partition, the
learned Trial Court committed no illegality in rejecting the
application of the petitioner under Order VII Rule 11 of the
CPC. Learned counsel, therefore, prayed that the civil revision
be dismissed as being devoid of merit.
8. In view of the rival submissions advanced on behalf
of the parties and the materials available on record, the principal
point which arises for determination in the present civil revision
is “whether the learned Trial Court committed any
jurisdictional error or material irregularity in rejecting the
petitioner’s application under Order VII Rule 11 of the CPC
seeking rejection of the plaint in Title Suit No. 25 of 2014,
particularly on the grounds of pendency of earlier Title Suit No.
6 of 1999 and alleged absence of cause of action?”
9. Before adverting to the rival contentions on merits,
it would be apposite to notice the scope of interference in
exercise of revisional jurisdiction under Section 115 of the CPC.
This Court does not sit as a court of appeal over the order of the
subordinate court; interference is warranted only where the
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by law, or has failed to exercise jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material
irregularity. Thus, unless the finding recorded by the learned
Trial Court is shown to suffer from a patent error of law or
jurisdictional infirmity, this Court would be slow to substitute its
own view merely because another view is possible.
10. The contours of revisional jurisdiction under
Section 115 of the CPC have been authoritatively delineated by
the Hon’ble Apex Court in Shiv Shakti Coop. Housing Society
v. Swaraj Developers and Ors., reported in (2003) 6 SCC 659,
wherein it has been held that the revisional power is supervisory
in nature and cannot be equated with appellate jurisdiction;
interference is permissible only where the subordinate court has
acted without jurisdiction or with material irregularity in the
exercise of such jurisdiction. Similarly, in Hindustan
Petroleum Corporation Ltd. v. Dilbahar Singh, reported in
(2014) 9 SCC 78, the Hon’ble Apex Court reiterated that re-
appreciation of facts or substitution of a possible view is
impermissible in revision unless the impugned order suffers
from patent illegality or perversity.
11. At this stage, it is apposite to reproduce the
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principles governing rejection of a plaint under Order VII Rule
11 of the CPC which have been explained in the case of
Dahiben (supra) wherein the Hon’ble Apex Court has settled
the principles and made the following observations:
“12.6- At this stage, the pleas taken by the
defendant in the written statement and
application for rejection of the plaint on
the merits, would be irrelevant, and cannot
be adverted to, or taken into consideration.
“12.7- The test for exercising the power
under Order VII Rule 11 is that if the
averments made in the plaint are taken
entirety, in conjunction with the documents
relied upon, would the same result in a
decree being passed”.
“23.2. The remedy under Order 7 Rule 11
is an independent and special remedy,
wherein the court is empowered to
summarily dismiss a suit at the threshold,
without proceeding to record evidence, and
conducting a trial, on the basis of the
evidence adduced, if it is satisfied that the
action should be terminated on any of the
grounds contained in this provision.
23.5. The power conferred on the court to
terminate a civil action is, however, a drastic
one, and the conditions enumerated in Order
7 Rule 11 are required to be strictly adhered
to.
23.9. In exercise of power under this
provision, the court would determine if the
assertions made in the plaint are contrary to
statutory law, or judicial dicta, for deciding
whether a case for rejecting the plaint at the
threshold is made out.
23.10. At this stage, the pleas taken by
the defendant in the written statement and
application for rejection of the plaint on the
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adverted to, or taken into consideration.
[Sopan Sukhdeo Sable v. Charity Commr.,
(2004) 3 SCC 137]
23.12. In Hardesh Ores (P) Ltd. v. Hede
& Co. [Hardesh Ores (P) Ltd. v. Hede &
Co., (2007) 5 SCC 614] the Court further
held that it is not permissible to cull out a
sentence or a passage, and to read it in
isolation. It is the substance, and not merely
the form, which has to be looked into. The
plaint has to be construed as it stands,
without addition or subtraction of words. If
the allegations in the plaint prima facie
show a cause of action, the court cannot
embark upon an enquiry whether the
allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman [D.
Ramachandran v. R.V. Janakiraman, (1999)
3 SCC 267; See also Vijay Pratap Singh v.
Dukh Haran Nath Singh, AIR 1962 SC 941].
23.13. If on a meaningful reading of the
plaint, it is found that the suit is manifestly
vexatious and without any merit, and does
not disclose a right to sue, the court would
be justified in exercising the power under
Order 7 Rule 11 CPC.
23.15. The provision of Order 7 Rule 11
is mandatory in nature. It states that the
plaint “shall” be rejected if any of the
grounds specified in clauses (a) to (e) are
made out. If the court finds that the plaint
does not disclose a cause of action, or that
the suit is barred by any law, the court has
no option, but to reject the plaint.”
12. So far as the contention of the petitioner regarding
the bar of Res Sub-judice under Section 10 of the CPC is
concerned, it is to be noted that Section 10 does not provide for
rejection of plaint but only mandates stay of trial of a
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subsequently instituted suit when the matter in issue is directly
and substantially in issue in a previously instituted suit between
the same parties litigating under the same title. The object of the
provision is to prevent parallel trials and conflicting decisions. It
is well settled that the provision does not render the subsequent
suit non-maintainable; rather, it merely postpones its trial till the
earlier suit is decided.
13. It is well settled that Res Sub-judice under Section
10 of the CPC generally requires a Court to stay, rather than
reject, a subsequently filed suit when a previously instituted
similar suit is pending. The rejection of a plaint occurs under
Order VII Rule 11 of the CPC, which usually requires the suit to
be barred by law on the face of the plaint. A plaint can only be
rejected if, ex facie, it shows that the suit is barred by law and
merely considering the averments made in the plaint it does not
disclose the cause of action and also for other grounds which
has been provided under Order VII Rule 11 of the CPC. Res
Sub-judice usually requires looking into the records of the
previous suit to determine similarity. Therefore, Res Sub-judice
is not a direct ground for rejection of a plaint under Order VII
Rule 11 of the CPC.
14. In the present case, from a plain reading of the
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plaint of Title Suit No. 25 of 2014, it cannot be conclusively
gathered at this stage that the matter in issue is directly and
substantially identical to that in Title Suit No. 06 of 1999 so as
to attract the mandatory ingredients of Section 10 CPC. Whether
both suits involve the same cause of action, identical issues and
same reliefs are questions which require examination of
pleadings of both suits and may involve adjudication upon
factual aspects. Such determination ordinarily falls within the
domain of trial and cannot be conclusively decided in an
application under Order VII Rule 11 CPC, which is confined to
the averments in the plaint alone. Consequently, the plea of Res
Sub-judice as raised by the petitioner does not, by itself, furnish
a ground for rejection of the plaint at the threshold.
15. Upon overall consideration of the pleadings of the
parties and the grounds urged in the application under Order VII
Rule 11 of the CPC, this Court finds that the controversy raised
by the petitioner involves disputed questions relating to
existence of prior partition, identity of subject matter in the
earlier Title Suit No. 06 of 1999, alleged absence of cause of
action, and non-joinder of necessary parties in a suit for
partition. In view whereof, determination of these issues would
necessarily require examination of pleadings of both suits,
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scrutiny of documents, and appreciation of evidence with
respect to unity of title and possession, nature of the property,
and entitlement of the parties. Such matters cannot be
conclusively adjudicated merely on a reading of the plaint and
undoubtedly constitute mixed questions of law and fact. The
scope of Order VII Rule 11 of the CPC being limited and
summary in nature, the learned Trial Court rightly refrained
from embarking upon a detailed inquiry at the threshold stage.
16. In revisional jurisdiction, interference is warranted
only when the subordinate court has exercised jurisdiction not
vested in it, failed to exercise jurisdiction so vested, or acted
with material irregularity. The impugned order, though concise,
reflects consideration of the relevant aspects and does not suffer
from jurisdictional error or perversity so as to warrant
interference under Section 115 of the CPC. Since the plaint, on
its face, discloses triable issues requiring adjudication after full-
fledged trial and evaluation of evidences, this Court is of the
considered view that no ground is made out to invoke revisional
powers.
17. Accordingly, the civil revision stands dismissed.
18. There shall be no order as to costs.
19. Let the copy of this judgment be transmitted to the
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court concerned forthwith along with the Trial Court Record for
compliance.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
U
