Patna High Court – Orders
Shailendra Chowdhary vs Smt. Jolly Choudhary on 13 March, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.193 of 2024
In
CIVIL MISCELLANEOUS JURISDICTION No.740 of 2024
======================================================
Shailendra Chowdhary, male, aged about-49 years, S/o Late Dr. Kiran
Shankar Pd. Chowdhary, Resident of Mohalla - Gopaljee Lane Saraiyaganj,
P.O. and P.S. - Town, District - Muzaffarpur.
... ... Petitioner/s
Versus
1. Smt. Jolly Choudhary W/o Sri Ravi Ranjan Jaiswal, D/o Late Dr. Kiran
Shankar Pd. Choudhary, Resident of Mohalla - Ghora Sahan, P.O. and P.S. -
Ghora Sahan, District - East Champaran, presently residing at M/s Laziz
Restraunt, Yogendra Mukherjee Road, Saraiyaganj, P.O. and P.S. - Town,
District- Muzaffarpur.
2. Smt. Rashmi Jaiswal W/o Sanjay Jaiswal, D/o Late Dr. Kiran Shankar Pd.
Choudhary, Resident of Mohalla - Henari, Bazar, in town of Motihari, P.O.
and P.S. - Motihari, District- East Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ramesh Kumar Agrawal, Advocate
Mr. R.K.Agrawal, Advocate
Mr. Sanjeev Kumar, Advocate
For the Respondent/s : Mr. Shashi Shekhar Dwidedi, Sr. Advocate
Mr. Manish Jha, Advocate
Mr. Pratyush Pratap Singh, Advocate
Mr. Ashutosh Kr. Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV ORDER
6 13-03-2026
Heard the learned counsel for the petitioner as well as
learned counsel for the respondents.
2. This Civil Revision application has been filed under
Section 115 of the Code of Civil Procedure, 1908 (hereinafter
referred to as ‘CPC‘) against the order dated 04.04.2024 passed
in the partition Suit No. 356 of 2013, by the learned Court of
Sub-Judge II, Muzaffarpur (hereinafter referred to as ‘Trial
Court’) whereby and whereunder the learned Trial Court has
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dismissed the application dated 13.01.2017 filed by the
petitioner/defendant no.2 for dismissal of the partition suit under
Order VII Rule 11 of the CPC, on the ground of non-
maintainability as it involve mixed question of law and fact.
3. The facts of the case, in brief, are that the Opposite
Party No.1 (plaintiff) instituted Partition Suit No. 356 of 2013
seeking a preliminary decree for partition with respect to the
properties described in Schedule I and Schedule II of the plaint
claiming 1/4th share therein. In the said suit, the plaintiff also
prayed for a declaration that the compromise petition filed in
earlier Partition Suit No. 435 of 2002 and Partition Suit No. 273
of 2006, which culminated in an award before the Lok Adalat,
was fraudulent, illegal and obtained by playing fraud upon the
plaintiff. The petitioner (defendant no.2) and other defendants
appeared in the suit and filed their joint written statement raising
several objections with respect to the maintainability of the suit,
including that the suit was barred by the principles of res
judicata, barred under Order XXIII Rule 3A of the CPC and that
the suit had been undervalued and requisite ad-valorem court
fee had not been paid. Thereafter, the petitioner (defendant no.2)
filed an application dated 13.01.2017 before the learned Trial
Court praying for dismissal of the suit or rejection of the plaint,
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inter alia, on the grounds that the suit properties were the
exclusive properties of the petitioner (defendant no.2) and not
liable for partition, the suit was barred by res judicata in view of
the earlier compromise before the Lok Adalat, the suit was
barred under Order XXIII Rule 3A of the CPC, and that the
plaintiff had failed to pay proper ad-valorem court fee despite
seeking declaration and consequential relief. The said
application was contested by the plaintiff and was ultimately
disposed of by the learned Trial Court vide order dated
04.04.2024 holding that the question of maintainability of the
suit involves mixed questions of law and fact and therefore
cannot be decided as a preliminary issue.
4. It is the case of the petitioner/defendants that the
properties sought to be partitioned were the exclusive properties
of petitioner (defendant no.2) and not liable for partition. They
denied the allegations of fraud and breach of trust, stating that
Opposite Party No.1 was educated and mature and that the Lok
Adalat compromise was executed with free consent of all
parties. It was also stated that Partition Suit No. 559 of 2009
filed earlier by Opposite Party No.1 with regard to the same
property was dismissed on 30.07.2013 as it is barred by res
judicata in view of the compromise in Partition Suit No. 273 of
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2006. The claim of the plaintiff that he came to know about the
compromise only in 2011 was denied, asserting that she had
been aware of the proceedings and had obtained a certified copy
of the compromise deed. It was further stated that one property
in Schedule I was taken on lease by the plaintiff’s husband from
petitioner (defendant no.2).
5. The petitioner further sought declarations that the
Lok Adalat award cannot be challenged in the partition suit by
seeking declaration of nullity on the ground of fraud. It is well
established fact that the issues of maintainability including res
judicata, court fee and bar under Order XXIII Rule 3A of the
CPC are pure questions of law and liable to be decided as
preliminary issues. Consequently, dismissal of Partition Suit No.
356 of 2013 is barred and not maintainable as prayed, along
with any other appropriate relief. The substantial questions
which has arisen includes the maintainability of the suit, liability
for ad-valorem court fee, applicability of res judicata and
statutory bar, whether such issues must be decided as
preliminary issues, and the petitioner’s entitlement to relief.
6. Considering the materials available on record and
in view of the facts and circumstances of the case, learned Trial
Court rejected the application dated 13.01.2017 as not
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maintainable vide impugned order dated 04.04.2024 holding
that Order VII Rule 11 of the CPC is applicable only in a case
where there is involvement of pure question of law but in this
case it is mixed with question relating to the fact and it needs
trial on that question. The Court determined that the issue of
maintainability in this specific case is a mixed question of law
and facts. As the issue involves complex disputes over property
acquisition and allegations of fraud, they cannot be decided as a
preliminary issue and require the appreciation of evidence. The
Court ruled that the issue of maintainability will be decided
alongwith all other issues which need to be framed later in the
suit.
7. Aggrieved by the impugned order dated 04.04.2024
passed in the partition Suit No. 356 of 2013, by the learned
Court of Sub-Judge II, Muzaffarpur, whereby the application
dated 13.01.2017 under Order VII Rule 11 of CPC was
dismissed, the petitioner has preferred this Civil Revision
application before this Court, assailing the legality, propriety
and correctness of the said order on the ground that the learned
Trial Court has failed to properly appreciate the mandatory
provisions of law and has exercised jurisdiction with material
irregularity.
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8. Learned counsel for the petitioner submitted that
the learned Trial Court has committed a manifest error of law in
rejecting the petitioner’s application dated 13.01.2017 by
mechanically observing that the issue of maintainability of the
suit is a mixed question of law and fact. It is submitted that the
petitioner had specifically raised several legal objections going
to the root of the maintainability of the suit, such as bar of the
suit by the principle of res judicata, bar under Order XXIII Rule
3A of the CPC, and the issue of improper valuation and non-
payment of requisite ad-valorem court fee. Learned counsel
further submitted that each of these objections required
independent consideration by the learned Trial Court and could
not have been deferred to be decided along with the final
adjudication of the suit.
8.i. Learned counsel for petitioner further submitted
that the present suit itself is barred by the principle of res
judicata in view of the earlier compromise entered into between
the parties before the Lok Adalat in the previous partition
proceedings. It is also submitted that once the dispute between
the parties had already been settled by way of a compromise
resulting in an award before the Lok Adalat, the same attains the
status of a decree of a Civil Court and cannot be re-agitated in a
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subsequent suit. Learned counsel for the petitioner further
submitted that the Opposite Party No.1 (plaintiff) had earlier
also instituted a partition suit in respect of the same properties
which was dismissed by the competent court on the ground of
res judicata, and therefore, the present suit is clearly barred by
law.
8.ii. Learned counsel for the petitioner further
submitted that the Opposite Party No.1 (plaintiff) has sought a
declaration that the compromise arrived at the earlier partition
suits was fraudulent and illegal and has also prayed for
consequential relief of partition. It is submitted that in such
circumstances, the plaintiff was legally bound to pay ad-
valorem court fee on the value of the relief claimed. He further
submitted the suit has been deliberately undervalued and the
requisite court fee has not been paid despite the objection
having been raised by the defendants in the written statement as
well as in the application dated 13.01.2017. It is submitted that
under Order VII Rule 11 of the CPC, the court is duty-bound to
examine the question of valuation and sufficiency of court fee at
the threshold on the basis of the averments made in the plaint.
8.iii. Lastly, learned counsel for the petitioner
submitted that in view of the clear statutory bar contained in
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Order XXIII Rule 3A of the CPC, no separate suit lies for
setting aside a compromise decree on the ground that the
compromise was not lawful. It is submitted that the plaintiff has
sought to indirectly challenge the Lok Adalat award, by way of
the present partition suit which is impermissible in law. Learned
counsel therefore submitted that the learned Trial Court ought to
have decided these issues as preliminary issues, as they are
purely based on questions of law going to the root of the
jurisdiction and maintainability of the suit. On these grounds,
learned counsel prayed that the impugned order dated
04.04.2024 be set aside.
9. Per contra, learned counsel appearing on behalf of
Opposite Party No.1 has supported the impugned order and
submitted that the present revision petition is wholly
misconceived and liable to be dismissed. It is submitted that
Opposite Party No.1 instituted Partition Suit No. 356 of 2013
seeking a preliminary decree for partition of the properties
described in Schedule I and II of the plaint to the extent of her
1/4th share and also for declaration that the compromise petitions
filed in Partition Suit No. 435 of 2002 and Partition Suit No.
273 of 2006 were fraudulent and obtained by playing fraud upon
her. Learned counsel submitted that the properties in question
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originally belonged to Subhadra Devi, who had acquired right,
title and possession over Schedule II property after purchasing
the same in the year 1987 from Ganga Prasad Choudhary. It is
also submitted that after her death on 15.12.2006, the property
devolved upon her husband namely Dr. Kiran Shankar Prasad
Choudhary, her son namely Shailendra Choudhary (petitioner)
and her two daughters, namely Jolly Chowdhry (Opposite Party
No.1 herein) and Rashmi Jaiswal, who succeeded to the said
property in equal shares.
9.i. Learned counsel for the Opposite Party No.1
further submitted that the petitioner, in connivance with his
father, fraudulently obtained compromise decrees in earlier
partition proceedings by misusing blank papers bearing the
signatures of the answering Opposite Party No.1 and her sister,
which were taken by their father on the pretext of being required
for litigation with tenants. He submitted that the answering
Opposite Party No.1 had complete faith in her father and used to
sign documents placed before her without knowledge of their
contents. It is further submitted that taking advantage of such
trust, the petitioner and his father utilized those signed papers as
compromise petitions and affidavits in Partition Suit No. 435 of
2002 and Partition Suit No. 273 of 2006. It is submitted that the
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answering Opposite Party No.1 came to know about the said
fraud only on 15.06.2011, upon receiving a communication
from the Assistant Electrical Engineer, Muzaffarpur, thereafter
she obtained certified copies of the pleadings and orders passed
in the said proceedings.
9.ii. Learned counsel for the Opposite parties has also
drawn attention of this Court to the peculiar circumstances
surrounding the award allegedly passed by the mobile Lok
Adalat in Partition Suit No. 273 of 2006. It is submitted that
although the compromise petition was filed on 02.11.2006 and
affidavits in support thereof were filed on 28.12.2006, the award
is shown to have been prepared on 15.12.2006, i.e., the very
date on which the mother of the parties, Subhadra Devi, expired.
It is further submitted that the said award was thus passed
against a dead person and therefore,it is null and void in the
eyes of law. In this regard, learned counsel has placed reliance
upon the decisions of the Hon’ble Supreme Court in Rajendra
Prasad & Anr. v. Khirodhar Mahto & Ors., reported in 1994
Supp (3) SCC 314; Amba Bai & Ors. v. Gopal & Ors., reported
in (2001) 5 SCC 570; and Vikram Bhalchandra Ghongade v.
State of Maharashtra & Ors., reported in 2025 SCC OnLine
SC 2360, wherein it has been held that any decree or order
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passed against a dead person is a nullity and non est in the eye
of law.
9.iii. Learned counsel for the Opposite Party No.1
submitted that the petitioner has been attempting to change the
nature of the suit property by alienating substantial portions
thereof during the pendency of the dispute and therefore
appropriate protection is necessary to safeguard the rights of the
parties. Learned counsel has also placed reliance upon the
decision of a Division Bench of this Court in Meena
Choudhary & Anr. v. Dr. Dilip Choudhary & Ors. (C.W.J.C.
No. 14426 of 2009) vide order dated 06.11.2009, wherein it has
been held that where an award of Lok Adalat is alleged to have
been obtained by fraud, the aggrieved party is not remediless
and may approach the competent Civil Court for appropriate
relief. On these premises, it is submitted that the Partition Suit
No. 356 of 2013 filed by Opposite Party No.1 is perfectly
maintainable and the order dated 04.04.2024 passed by the
learned Trial Court does not suffer from any illegality
warranting interference in revisional jurisdiction, and therefore
the present revision petition deserves to be dismissed.
10. Having considered the rival submissions advanced
on behalf of the parties and have perused the materials available
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on record, including the impugned order and the order sheets of
the learned Trial Court, the point that arises for determination in
the present revision is “whether the learned Trial Court erred in
law in rejecting the application under Order VII Rule 11 of the
CPC seeking rejection of the plaint?”
11. 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 learned Trial Court has exercised a jurisdiction not vested in
it 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.
12. 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
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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.
13. At this stage, it is apposite to reproduce the
principles governing rejection of a plaint under Order VII Rule
11 of the CPC which have been explained in the case of
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) and Ors.,
reported in (2020) 7 SCC 366 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
Patna High Court C.R. No.193 of 2024(6) dt.13-03-2026
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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
merits, would be irrelevant, and cannot be
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
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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.”
14. Upon meticulous examination of the facts and
circumstances of the case, this Court is of the view that the
learned Trial Court has rightly observed, the objections raised
by the petitioner with regard to the maintainability of the suit,
particularly on the grounds of res judicata, bar under Order
XXIII Rule 3A of the CPC and valuation of the suit, involve
questions which cannot be decided merely on the basis of
pleadings and require proper adjudication upon appreciation of
evidences during the stage of the trial.
15. The Hon’ble Apex Court in Srihari Hanumandas
Totala v. Hemant Vithal Kamat & Ors., reported in (2021) 9
SCC 99 held that the adjudication of the plea of res judicata is
beyond the scope of Order VII Rule 11 of the CPC, relevant
para is as under:
“25.4. Since an adjudication of the plea of
res judicata requires consideration of the
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“previous suit”, such a plea will be beyond
the scope of Order 7 Rule 11(d), where only
the statements in the plaint will have to be
perused.”
16. Moreover, the issue of res judicata cannot be
decided merely on assertions made in the application seeking
rejection of plaint. The Hon’ble Supreme Court in Keshav Sood
v. Kirti Pradeep Sood, reported in 2023 SCC OnLine SC 2459
took a strong view against the plea of res judicata being raised
in applications seeking rejection of plaint and held as under:
“5. As far as scope of Rule 11 of Order VII
of CPC is concerned, the law is well settled.
The Court can look into only the averments
made in the plaint and at the highest,
documents produced along with the plaint.
The defence of a defendant and documents
relied upon by him cannot be looked into
while deciding such application.
6. Hence, in our view, the issue of res
judicata could not have been decided on an
application under Rule 11 of Order VII of
CPC. The reason is that the adjudication on
the issue involves consideration of the
pleadings in the earlier suit, the judgment
of the Trial Court and the judgment of the
Appellate Courts. Therefore, we make it
clear that neither the learned Single Judge
nor the Division Bench at this stage could
have decided the plea of res judicata raised
by the appellant on merits.”
17. It is well settled law that while considering the
prayer for rejection of plaint under Order VII Rule 11 of the
CPC, the Court is required to confine itself to the averments
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made in the plaint and the documents relied upon therein. The
defence taken by the defendants in the written statement or the
materials relied upon by them, cannot be looked into at that
stage. In the present case, the plea of res judicata raised by the
petitioner necessarily requires examination of the earlier
proceedings, the nature and scope of the compromise before the
Lok Adalat, and the surrounding circumstances in which the
previous proceedings were concluded, which are matters that
cannot be determined without leading evidence.
18. This Court is of the opinion that the question
whether the present partition suit is barred by the principles of
res judicata or by Order XXIII Rule 3A of the CPC cannot be
conclusively determined at the threshold merely on the basis of
pleadings. Such issues involve a mixed question of law and fact
and require consideration of the earlier proceedings and the
evidence that may be brought on record by the parties.
Therefore, the learned Trial Court was justified in holding that
the issue of maintainability should be decided along with other
issues after appreciation of evidence.
19. 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
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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 thereof, determination of these issues would
necessarily require examination of pleadings of both suits,
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 has rightly refrained
from embarking upon a detailed inquiry at the threshold stage.
20. As settled above that in revisional jurisdiction,
interference is warranted only when the Subordinate Court has
exercised the 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
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requiring adjudication after full-fledged trial and evaluation of
evidences, this Court is of the considered view that no such
ground is made out to invoke the revisional power of this Court.
21. Accordingly, the present Civil Revision No. 193 of
2024 stands dismissed.
22. There shall be no order as to costs.
23. Let the copy of this order be transmitted to the
Court concerned forthwith for its compliance.
(Ramesh Chand Malviya, J)
Harshita/-
U
