1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 6 of 2011 Akhilesh Kumar S/o Shri Sarwan Kumar R/o 83/2 Patel Nagar Dehradun, Uttarakhand …..…Appellant Versus Smt. Sarita W/o Shri Akhilesh Kumar R/o Railway Road, Doiwala District Dehradun ……….Respondent Shri R.P. Nautiyal, Advocate, present for the appellant Shri Pawan Mishra, Advocate, present for the respondent Hon'ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C. Pant,J. This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against order dated 09.12.2010, passed by Principal Judge, Family Court, Dehradun, in suit no. 536 of 2008, whereby said court has rejected the plaint under order VII Rule 11 of Code of Civil Procedure, 1908 (for short CPC). 2 2. Heard learned counsel for the parties, and perused the record. 3. Brief facts, of the case are that appellant Akhilesh Kumar got married to respondent Sarita on 13.12.1996, following Hindu Rites at Dehradun. Out of the wed-lock a son named Naman born. However, thereafter it appears that relations between the parties started souring. It is alleged in the divorce petition filed by the husband (appellant) before the trial court that he was subjected to cruelty by filing criminal cases by his wife. It is also pleaded that the respondent has left company of her husband without sufficient cause. 4. It appears that the suit was contested by respondent (wife) who filed her written statement, and issues were framed on 15.11.2010. Thereafter, evidence of the parties was taken on 18.11.2010 ,and 21.12.2010. Thereafter, application 23C was moved by the respondent praying that plaint be rejected under order VII Rule 11 C.P.C., which was allowed by the trial court. 5. Rule 11 C.P.C., of the Code provides grounds on which plaint can be rejected. Where the 3 plaint does not disclose cause of action, plaint can be rejected under said provision. There are other five grounds also on which the plaint can be rejected. It is settled principle of law that to come to the conclusion whether the plaint is liable to be rejected under aforesaid provision it is only the plaint which can be looked into. In the present case not only the written statement was filed, and issues were framed but evidence was also recorded by the trial court. It is not necessary that application under order VII Rule 11 should be moved before filing of the written statement but it is strange that when there was no cause of action how the issues were framed, evidence was led as to cruelty i.e. ground mentioned in the petition. 6. Learned counsel for the respondent argued that ground of cruelty taken in the plaint is not made out for the reason that all the acts of cruelty relate prior to the compromise between the parties in the year 2007. This Court is of the view that on such ground plaint cannot be rejected under Rule 11 of order VII of the Code as the plaint does not say that the acts of cruelty stood condoned. It is plea of the defendant which has been raised in the written statement that the acts of alleged cruelty stood 4 condoned. Apart from this, in para 23 of petition/plaint there is specific allegation of cruelty which relates to the year 2008. Whether the allegation is correct or not is not required to be seen at the time of passing order under Rule 11 of order VII of the Code. 7. In the above circumstances, and for the reasons as discussed above, we find that impugned order rejecting the plaint under order VII Rule 11 of C.P.C., is erroneous in law, as from the plaint it cannot be said that cause of action is not disclosed. Therefore, the appeal is allowed. Impugned order dated 09.12.2010, passed on application 23C in suit no. 536 of 2008, by Principal Judge, Family Court, Dehradun, is hereby set aside. Application 23C stands rejected. The case is remanded back to the trial court to decide the same on merits in accordance with law. No order as to costs. (Sudhanshu Dhulia, J. ) (Prafulla C. Pant, J.) 30.06.2011 Parul