Patna High Court – Orders
Ajay Kumar Singh vs Ramakant Singh on 28 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.173 of 2025
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Ajay Kumar Singh S/o Fateh Singh, R/o Mauza Rampur Khajuria, PO
Khajuria, PS Dumariya Ghat, District East Champaran.
... ... Petitioner/s
Versus
Ramakant Singh S/o Fateh Singh, R/o Mauza Rampur Khajuria, PO Khajuria,
PS Dumariya Ghat, District East Champaran.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Anupam Prabhat Shrivastava, Advocate
For the Respondent/s : Mr. Dhannjay Kumar No 2, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV ORDER
7 28-07-2026
Heard learned counsel for the petitioner as well as
learned counsel for the respondent.
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
18.06.2025 passed by the learned Sub-Judge 1 st, Motihari
(hereinafter referred to as ‘Trial Court’) the in Partition Case
No. 361 of 2022 whereby and where under the petition dated
21.08.2023 filed on behalf of defendant/petitioner for rejection
of plaint under Order VII Rule11of the CPC was rejected.
3. The facts of the case, in brief, is that the
plaintiff/opposite party filed the Partition Suit No. 361 of 2022
wherein the defendant/petitioner is the real brother of the
plaintiff/opposite party. Partition among the three sons namely,
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Raj Dev Singh, Fathe Singh (father of the parties), and Kedar
Singh of the Narsingh Singh (grand-father of the parties) was
occur in the year 1987-1988 and some properties was jointly
purchased which was also partitioned and the plaintiff further
mention that in the year 1940 some benami properties were
purchased in the name of Thakur Singh. Moreover, Some
properties are still not partitioned amongst the parties to the
aforesaid partition suit which included residential house and
some purchased property which is mentioned in Schedule II of
the plaint and the same is liable to be partitioned amongst the
parties to the aforesaid suit. Hence the partition suit was filed.
4. Subsequently, on 21.08.2023 defendant/petitioner
filed petition under Order VII Rule 11 of the CPC for rejection
of plaint on point that the suit is barred under Section 4 of the
Prohibition of Benami Property Transaction Act, 1988
(hereinafter referred to as ‘Act’) and further alleged that suit
seeks partition of properties which are the exclusive self-
acquired property of the petitioner/defendant.
5. Upon consideration of the facts and circumstances
of the case, learned Trial Court in the petition filed by the
defendants dated 21.08.2023 rejected the same vide order dated
18.06.2025. Aggrieved by the impugned order the petitioner has
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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.
6. Learned counsel for the petitioner submitted that
the impugned order suffers from patent jurisdictional error
inasmuch as the learned Trial Court has failed to exercise
jurisdiction vested in it by law. He further submitted that the
learned Trial Court has committed a manifest error of law in
rejecting the petitioner’s application without appreciating the
fact that the relief sought is not maintainable and the plaintiff
has no cause of action. He further submitted that the impugned
order dated 18.06.2025 is unsustainable in law, as the learned
Trial Court committed manifest error in rejecting the petitioner’s
application on the sole ground that issues had not yet been
framed and the suit was at an initial stage. The stage of the suit
is not decisive for the adjudication of an application under Order
VII Rule 11 of the CPC. The appropriate stage for filing
application for rejection of plaint is at the early stage so that
precious time of the learned court be saved and vexatious cases
need not be allowed to proceed for trial.
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6.i. He further submitted that an application under
Order VII Rule 11 of the CPC must be decided only on a
meaningful reading of the averments made in the plaint, and not
by reference to the stage of the suit. The power under Order VII
Rule 11 of the CPC can be exercised at the threshold, or at any
later stage, if the plaint is found to be barred by law or to
disclose no cause of action. Therefore, the stage of the suit is not
a relevant consideration, and the learned Trial Court erred in
treating it a decisive. In order to support his arguments he relied
on the judgment of Hon’ble Apex Court in the matter of M/S
Bhagya Estate Ventures Pvt. Ltd. v. Narne Estates Pvt. Ltd. &
Anr Civil Appeal No. 4570 Of 2023 observed that:
“7. The only issue which arises for
consideration before this Court is the stage
at which an application seeking rejection of
plaint can be filed and entertained. The
provision in itself does not specify any stage
or limitation regarding the filing of the
application, but the law has been laid down
by this Court in Saleem Bhai and Ors. v.
State of Maharashtra & Ors.,2 that an
application under Order VII Rule 11, CPC
can be filed at any stage – before registering
the plaint or after the issuance of summons
to the defendants or at any time before the
conclusion of the trial. This has been
reiterated by this Court in several cases
over the course of time.”
“10. Thus, the principle underlying the
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that the courts must attempt to recognise
and reject a plaint at the outset which is
defective for any of the reasons enumerated
in Order VII Rule 11 CPC or any similar
provision. The aim while undertaking such
an exercise remains to put a nip in the bud
to litigation that is otherwise lacking the
essential ingredients of a proper plaint.”
6.ii. He further submitted that the principle underlying
the provisions for rejection of plaint/petition is that the courts
must attempt to recognize and reject a plaint at the outset which
is defective for any of the reasons enumerated in Order VII Rule
11 of the CPC or any similar provision. In order to support his
argument he placed his reliance in Samar Singh v. Kedar Nath,
1987 Supp SCC 663 in which Hon’ble Apex Court was of the
opinion that:
“7…. Normally, when a suit is instituted the
court is to satisfy itself that the suit is
maintainable and it disclosed cause of
action and only thereafter the court may
issue summons to the defendants but merely
because the summons are issued, the
defendants’ right to raise preliminary
objection for rejection of the plaint on the
ground that it disclosed no cause of action
is not affected. If a plaint or an election
petition does not disclose any cause of
action, it does not stand to reason as to why
the defendant or the respondent should
incur costs and waste public time in
producing evidence when the proceedings
Patna High Court C.R. No.173 of 2025(7) dt.28-07-2026
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objection….”
6.iii. Learned counsel for the petitioner also placed his
reliance in the judgement passed by the Hon’ble Apex Court in
Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557, held
as under:
“9. A perusal of Order 7 Rule 11 CPC
makes it clear that the relevant facts which
need to be looked into for deciding an
application thereunder are the averments in
the plaint. The trial court can exercise the
power under Order 7 Rule 11 CPC at any
stage of the suit, before registering the
plaint or after issuing summons to the
defendant at any time before the conclusion
of the trial. For the purposes of deciding an
application under clauses (a) and (d) of
Rule 11 of Order 7 CPC, the averments in
the plaint are germane; the pleas taken by
the defendant in the written statement
would be wholly irrelevant at that stage,
therefore, a direction to file the written
statement without deciding the application
under Order 7 Rule11.”
6.iv. It is further submitted that the plaint filed by the
opposite party/plaintiff is vexatious and does not disclose a clear
right to sue. The learned Trial Court ought to have examined
whether the ground under Order VII Rule 11 of the CPC was
made out, instead of allowing the suit to proceed mechanically.
The Hon’ble Apex Court observed and reiterated in its landmark
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judgement passed in T. Arivandandam versus T.V. Satyapal
and Another (1978 SCR (1) 742) that,
“5……If, on a meaningful, not formal,
reading of the plaint, it is manifestly
vexatious and meritless, in the sense of not
disclosing a clear right to sue, he (Munsif)
should exercise his power under Order VII
Rule 11, C.P.C., taking care to see that the
ground mentioned therein is fulfilled. And,
if clever drafting has created the illusion of
a cause of action, it should be nipped in the
bud at the first hearing by examining the
party searchingly under Chapter X, CPC
An activist Judge is the answer to
irresponsible lawsuits. The trial court
should insist imperatively on examining the
party at the first hearing so that bogus
litigation can be shot down at the earliest
stage.”
6.v. He further submitted that opposite party/plaintiff,
in paragraph no. 6 of the plaint, has himself pleaded that certain
property was purchased benami in the name of one Thakur
Singh in the year 1940 and later came into the family through a
subsequent transaction. This is a clear admission of a benami
transaction on the plaintiff own showing. Consequently, the suit
is barred by Section 4 of the Act, thereby attracting Order VII
Rule 11(d) of the CPC. It is submitted that where the plaint, on a
meaningful reading, shows that the claim is based on benami
transaction, the bar under Section 4 of the Act applies. In such a
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case, the suit, or the part of the claim affected by that bar, is
liable to be rejected under Order VII Rule 11(d) of the CPC,
since that provision requires rejection of a plaint where the
statement in the plaint shows that the suit is barred by law.
6.vi. He further submitted that the learned Trial Court,
while referring to the exception under Section 4(3) of the Act
regarding purchases made by a karta of a joint family out of
joint family income, failed to appreciate that there are no
fundamental pleadings in the plaint showing the existence,
creation, and continuation of a Hindu Undivided Family or that
the property in question was purchased by a karta out of joint
family funds. The exception cannot be invoked on assumptions
in the absence of specific pleadings. He further submitted that
the plaint does not disclose any enforceable right in favour of
the opposite party in respect of the suit properties. The opposite
party has made vague and general assertions regarding joint
family property and joint purchases, without pleading any
specific and categorical facts showing that the properties fall
within the recognized exceptions under the Act.
6.vii. He further submitted that the mere use of
expressions such as “joint funds” or “joint family property” is
not sufficient in law. The opposite party has failed to plead the
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basic facts necessary to establish the existence, creation, and
continuation of a Hindu Undivided Family or any other legally
recognized exception. In the absence of such pleadings, the suit
cannot be allowed to proceed. The plaint in the present case
contains no such fundamental pleadings and, therefore, fails to
disclose any legally enforceable right.
6.viii. He further submitted that there is no cause of
action in favour of the Respondent/Plaintiff to file the instant
suit. An extensive perusal and consideration of the plaint and the
relevant portion reproduced above shows that the plaintiffs have
deliberately failed to elaborate or even mention as to how the
suit property became an HUF property. Further, the plaintiffs
have also completely failed to mention that the suit property,
which is admittedly in the name of the petitioner/defendant, and
other property which were purchased by the plaintiffs, were not
part of the HUF. The averments and contentions regarding these
facts have not been mentioned in the pleading of the plaintiffs
and therefore, the basic and necessary ingredient is missing
from the plaint explaining how the opposite party/plaintiff is
entitled to claim the partition of the property which was
purchased by opposite party/defendant. He further submitted
that the plaintiff is seeking the partition of property however,
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they have miserably failed to show how the suit property came
to be an HUF property. The plaintiffs have further failed to
establish their entitlement to seek the reliefs as sought before
this Court.
6.ix. He lastly submitted that the order dated
18.06.2025 passed by the learned Sub Judge-I, Motihari, East
Champaran, in Title Partition Suit No. 361 of 2022 is liable to
be set aside and present Civil Revision application is fit to be
allowed.
7. Per contra, learned counsel for the
plaintiff/opposite parties has substantiated the impugned order
and submitted that the application under Order VII Rule 11 of
the CPC is wholly misconceived and not maintainable in the
facts of the case. The grounds raised by the petitioner in the
application under Order VII Rule 11 of the CPC is not a pure
question of law but a mixed question of law and fact, which
cannot be adjudicated at the threshold stage without proper
evaluation of evidences.
7.i. It is a settled proposition of law that, at the stage
of consideration under Order VII Rule 11 of the CPC, the Court
is neither required nor permitted to adjudicate upon the veracity,
sufficiency, or otherwise of the pleaded facts, as such an
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exercise falls strictly within the domain of trial. He further
submitted that from perusal of the plaint in the partition suit
itself it is evident that there is specific assertion given by the
plaintiff in order to support his claim. He further submitted that
it is admitted fact in present case that the land is joint Hindu
family property and plaintiff and defendant are full brothers.
The impugned order is well substantiated as per the established
law and the same would not ipso facto warrant the rejection of
the plaint.
8. Having considered the rival submissions advanced
on behalf of the parties and have perused the materials available
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?”
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
learned Trial Court has exercised a jurisdiction not vested in it
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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
principles governing rejection of a plaint under Order VII Rule
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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
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
Patna High Court C.R. No.173 of 2025(7) dt.28-07-2026
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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.
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
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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. 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 issue raised by the
petitioner involves disputed questions regarding the suit is
barred under Section 4 of the Act and establishment of the
existence, creation, and continuation of a Hindu Undivided
Family which require the examination and proper evaluation of
the evidence at the stage of trial and not the matter to be
considered at the time while deciding the application under
13. The Hon’ble Apex Court in the case of Shaifali
Gupta v. Vidya Devi Gupta and others reported in 2025 SCC
OnLine SC 1181 held that:
“27. In such circumstances, whether a
property is a benami, has to be considered
not in the light of Section 4 of the Benami
Act alone but also in connection with
Sections 2 (8) and 2 (9) of the said Act i.e.
whether the property if benami falls in the
exception. It is only where the property is
benami and does not fall within the
exception contained in Sub-Section (9) of
Section 2 that a suit may be said to be
barred. However, the issue whether the
property is benami and is not covered by
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decided on the basis of evidence and not
simply on mere averments contained in the
plaint. The defendants have to adduce
evidence to prove the property to be
benami.”
“28. In Pawan Kumar v. Babu Lal (2019) 4
SCC 367, a similar issue arose before this
Court in a matter concerning rejection of
plaint under Order VII Rule 11 (d) CPC.
This Court held that for rejecting a plaint,
the test is whether from the statement
made in the plaint it appears without doubt
or dispute that the suit is barred by any
statutory provision. Where a plea is taken
that the suit is saved by the exception to
the benami transaction, it becomes the
disputed question of fact which has to be
adjudicated on the basis of the evidence.
Therefore, the plaint cannot be rejected at
the stage of consideration of application
under Order VII Rule 11 CPC.”
emphasis supplied
14. Moreover, from the facts and circumstances of the
instant case it appears that there is mixed question of law and
fact that requires a full trial for proper adjudication after
evidence has been presented. The application of Section 4 of the
Act in the present case is a complex issue that requires further
examining and evaluation of evidence. At this stage,
adjudicating on the point of benami transaction would be a
premature determination of a mixed question of law and fact,
which is only suitable for a trial after examination of evidence.
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Therefore, it cannot be decided merely on assertions made in the
application seeking rejection of plaint under Order VII Rule 11
of CPC.
15. In the present case, if the statements in the plaint
are taken to be true, it cannot be said that it does not disclose a
cause of action and the plaint shall be rejected. This is a matter
of trial, the result of which would depend upon the evidence
adduced by the appellant/plaintiff. At this stage, the Court is not
concerned with the correctness of the averments, except to state
that the appellant/plaintiff has to discharge the burden of
proving this case. Insofar as the application under Order VII
Rule 11 of CPC is concerned, this court will proceed only that
far, to examine whether the plaint discloses a cause of action or
suit is barred by law and no further. The genuineness, validity
and binding nature of document will have to be adjudicated at
the appropriate stage in trial of the case after the parties adduce
oral and documentary evidence.
16. At this outset, it is relevant to mention that the
court concerned shall not reject the plaint based on a claim of
benami transaction at the initial stage. The issue shall be
addressed during the trial, after all parties had an opportunity to
present their case as well as the evidence in support of their
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case. So far as the ground of partition of self-acquried property
is concerned, it is clearly a mixed question of fact which can be
decided after the appreciation of oral and written evidence
adduced by the parties during the stage of trial.
17. The said plea essentially introduces a defence
based on disputed facts, which does not emanate from the
averments made in the plaint and, therefore, cannot be
considered while deciding an application under Order VII Rule
11 of the CPC. It is well settled that for the purposes of Order
VII Rule 11of the CPC, the Court is required to confine itself
strictly to the pleadings in the plaint and assume the same to be
correct, without embarking upon an enquiry into their
truthfulness or otherwise. The applicability of Section 4 of the
act require evidence and adjudication at the stage of trial, and
cannot be conclusively determined at the threshold.
18. The defence sought to be raised by the petitioner
cannot be used to displace such averments at this preliminary
stage. Accordingly, the said contention falls outside the limited
scope of inquiry under Order VII Rule 11 of the CPC and does
not warrant rejection of the plaint.
19. In the considered view of this Court, the issue
raised, therefore, does not fall within the limited scope of
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inquiry under Order VII Rule 11 of the CPC and has rightly not
been accepted as a ground for rejection at this stage. This Court
is of the considered opinion that the learned Trial Court has not
committed any jurisdictional error, illegality, or material
irregularity in rejecting the application under Order VII Rule 11
of the CPC.
20. In view of the settled legal position that rejection
of plaint under Order VII Rule 11 of the CPC is a drastic power
to be exercised sparingly and only when the plaint, on the face
of it, is barred by any law, this Court finds that the learned Trial
Court has rightly refused to reject the plaint. The impugned
order does not suffer from any jurisdictional error or material
irregularity warranting interference in revisional jurisdiction.
Accordingly, this Court is not inclined to interfere with the order
under challenge, and the present civil revision application is
liable to be dismissed.
21. 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
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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 such
ground is made out to invoke the revisional power of this Court.
22. Accordingly, the present Civil Revision No. 173
of 2025 is hereby stands dismissed.
23. There shall be no order as to costs.
(Ramesh Chand Malviya, J)
Harshita/-
U
