HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:3244 OF 2011 ORDER: The petitioner-defendant No.1 filed this revision seeking to revise the order dated 12.4.2010 passed by the II Additional District & Sessions Judge (FTC), Vijayawada dismissing I.A.No.230 of 2009 in O.S.No.133 of 2008 filed by the petitioner-1st defendant under Order 7 Rule 11 CPC to reject the plaint filed by the respondent-plaintiff for the relief of partition of the plaint schedule property. The petitioner and the 1st respondent are the children of one Pinnamaneni Satyanarayana. It is stated that earlier to filing of the present suit, the 1st respondent-plaintiff filed a suit for declaration basing on the will alleged to have been executed by Pinnamaneni Satyanarayana on 1.3.2005 and in the said suit, the petitioner- defendant relied upon another will dated 1.3.2005. The said suit was dismissed with a finding that Pinnamaneni Satyanarayana died intestate. On dismissal of the said suit, the present suit has been filed for partition. It is the case of the petitioner-defendant that aggrieved by the finding that Pinnamani Satyanarayana died intestate, he filed AS(sr) No.3634 of 2009 before this Court with an application to condone the delay, in which notice was ordered and that one third party claiming to be a legatee under the will of the plaintiff filed an appeal in A.S.No.861 of 2008 before this Court showing the 1st respondent and the petitioner herein as parties and that in view of the pendency of both the appeals, the present suit is barred by principle of res-judicata, and further, there is no cause of action for the present suit. In a case of this nature, for the limited purpose of determining the question as to whether the suit is to be rejected under Rule 11 of Order 7 CPC., the averments in the plaint are only to be looked into, but not the possible defences of the defendant. Merely because of filing of the earlier suit for declaration basing upon the same will and the dismissal of the suit on the ground that the testator died intestate and the pendency of the appeals, the plaint cannot be rejected. Pendency of the appeals between the same parties possibly may be a ground to stay the trial of the second suit till disposal of the appeals, depending on the circumstances of the case, but not to reject the plaint. In the present case, in view of the subsequent event viz., death of the testator-Satyanarayana, both the parties, who are the children of the said Satyanarayana, are entitled to succeed to the properties of their father. Therefore, it cannot be said that there is no cause of action in the suit and the present suit is barred by principle of res judicata. In these circumstances, this Court is of the view that the order impugned does not suffer from any irregularity or illegality warranting interference by this Court. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. _____________________ Justice A. Gopal Reddy Date:27th August, 2011 Nn. HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:3244 OF 2011 27.8.2011 Nn