1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3286 OF 2008 IN SUIT NO.3693 OF 2003 Neeraj S/o.Shyam Choudhary .. Plaintiff Versus Ms.Sneha D/o.Shyam Choudhary and Ors. .. Defendants Mr.Vishal Kanade i/b. M/s.M.Hiralal & Co. for plaintiff Mr.R.P.Joshi for defendant Nos. 6 to 10 and 12 Mr.Jayesh Trivedi for defendant No.5. CORAM : S.C.DHARMADHIKARI, J. DATE : 3rd March 2009. P.C. . Considering the nature of relief claimed, liberty is granted to convert this notice of motion into chamber summons. Office to permit the amendments and number the motion as chamber summons. 2. Heard Counsel for respective parties. By 2 this chamber summons, what the defendant Nos. 6 and 7 are praying is that the plaint be rejected. 3. Learned Counsel appearing in support of this chamber summons, contended that the power of the Court under Order VII Rule 11 of C.P.C. read with section 151 thereof is invoked to claim these reliefs. Prayer (a) of the chamber summons prays for dismissal of the suit but alternatively, it is prayed in prayer (b) that the plaint is liable to be rejected. 4. It is contended on behalf of the defendant Nos. 6 and 7 that the suit is filed by the plaintiff on the basis that the plaintiff and defendants constituted a joint Hindu family and the properties, including the one set out in Schedule B are the ownership of Joint Hindu Family so also the plaintiff is entitled to 1/6th share therein. It is in such circumstances that the suit is claiming a declaration of share and 3 relief of partition of the property. However, Schedule B would show that description of the properties is vague. There are no particulars including any survey number or the place where the property is situated. He invites my attention to Order VII Rule 3 and contends that once the property, of which partition is claimed has not been identified in the light of Order VII Rule 3, then, the claim based upon the partition is ex facie untenable and, therefore, the plaint is liable to be rejected. 5. Alternatively and without prejudice his contention is that the Defendant No.5 has filed a suit in the Court of Civil Judge, Senior Division Vasai for identical reliefs and the suit is pending. He applied for interlocutory injunction in that suit but was unsuccessful in his attempt. Having been unsuccessful to get injunction, he has now put up the plaintiff for claiming the same relief and this is one more reason why the 4 plaint be rejected. 6. Mr.Kanade appearing for plaintiff contended that the plaint is to be taken as it is for the purpose of Order VII Rule 11 of C.P.C. The Court must proceed to accept the allegations as true and then consider whether the plaint is liable to be rejected. He submits that the argument of defendant Nos. 6 and 7 overlooks the plaint allegations and averments in their entirety. If read as a whole together with the amendments carried, there is no substance in any of these contentions. The property and the share has been properly identified. Further, the relief that is claimed in the suit at Vasai Court by defendant No.5 is partition of partnership firm assets, whereas this is a substantive suit claiming partition of all properties. Considering the same, this is not a case where the plaint is liable to be rejected. 5 7. I have perused this chamber summons and the reply, rejoinder and annexures thereto. With the assistance of Counsel for parties, I have perused the plaint. The plaint averments proceed on the basis that the plaintiff has a share in the joint family property which include the properties mentioned at Schedule B. The basis of the plaint allegations is that the joint family properties are being usurped by defendant Nos. 6 and 7. They are denying the plaintiff a share therein together with other defendants. It has become necessary for the plaintiff to claim declaration of his share after adjudication by the Court. It is after this adjudication that the plaintiff seeks partition by metes and bounds. 8. I do not see as to how the plaint can be rejected merely because the properties are not properly described in the Schedule to the plaint. This is something which the plaintiff will have 6 to establish and prove. It is not as if all details have to be set out in the schedule itself by him. That is not even the case of parties. The case is that the properties are described vaguely. However, upon the amendment of plaint page 4A has been introduced wherein the property is described in some details. This is not the stage to examine whether the plaintiff can succeed on the basis of this description. If upon opportunity being afforded to plaintiff, as contemplated by law, he cannot identify the property, then, he may as well lose the litigation. However, he cannot be thrown out at this stage. More so, when the plaint averments and the schedule have been seen together. Order VII Rule 3 of C.P.C. which has been pressed into service is a provision which deals with the plaint. Particulars to be contained in the plaint are set out in Order VII Rule 1. What is required to be pleaded in money suit is covered by Order VII Rule 2. Where the subject matter of 7 the suit is immovable property, what is required is description of the property sufficient to identify it and in case it may be identified by boundaries or particulars in the survey record, the plaint shall specify such boundaries or particulars. In case of encroachment, a sketch becomes something which is of assistance to the Court. Now, surely the plaint cannot be thrown out because in the opinion of defendant Nos. 6 and 7, the description of the property is not sufficient to identify the same. That is the plea which can be raised during the course of proceedings. It is not necessary to go into the same when the plaint cannot be rejected on the basis of the contentions in that behalf. 9. Similarly, I do not see how filing of suit by defendant No.5 is of any assistance while considering the request made in this chamber summons. If at all that is a prior suit claiming the same relief, there are other provisions in 8 C.P.C. which enable defendant Nos.6 and 7 to seek appropriate relief. They would come to their assistance. It is not for me to spell them out. It is not permissible to reject the plaint merely because another suit by defendant No.5 is filed. Nothing has been pointed out which would enable the Court to exercise its power under Order VII Rule 11, in this case, merely because another suit by defendant No.5 is pending. More so, when it is the case of plaintiff in this suit that there is no identity of cause of action. For all these reasons, there is no substance in the contentions that the plaint is liable to be rejected on this ground. 10. The above were the only contentions raised and argued before me. Having found no substance in them, I have no alternative but to reject this chamber summons, which is accordingly rejected. No costs. 9 11. However, I clarify that all pleas and contentions on the above noted aspects are kept open including the merits of the controversy. Merely because this chamber summons is rejected does not mean that the pleas noted above, cannot be raised by defendant Nos. 6 and 7. They can be raised at an appropriate stage. 12. In the view that I have taken on this chamber summons, it is not necessary to grant any adjournment to defendant No.5 to file a reply. (S.C.Dharmadhikari, J)