IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9341 of 2011 Dwarika Nath Pandey Versus Prem Sheela Pandey & Ors ---------------------------------- 08. 05.12.2011. Heard the learned counsel for the petitioner. It appears that respondents have already filed Vakalatnma but when this application is called out for hearing in admission matter, no one appeared on their behalf. The defendant has filed this application under Article 227 of the Constitution of India against the order dated 04.03.2011 passed by Sub Judge Vth, Siwan in title suit No.465 of 2004 whereby the learned Court below rejected the application filed by the petitioner praying for rejection of the plaint under the provision of Order 7 Rule 11 ‘A’ and ‘D’ C.P.C. It appears that the plaintiff-respondent filed partition suit No.465 of 2004 claiming half share in the suit property. The plaintiff respondent also prayed for injunction. The defendant-petitioner appeared and filed a written statement alleging that the property is the self-acquired property of mother of this defendant and, therefore, the plaintiff has got no share in the property in view of Hindu law and, therefore, the plaintiff has got no cause of action for filing the partition suit. The learned counsel relied upon 2010 (2) P.L.J.R. 437, A.I.R. 2010 Patna 189 and 2006 (1) P.L.J.R. (S.C.)1 and submitted that the learned Court below should have rejected the plaint. From perusal of the decisions 2010 (2) P.L.J.R. 437, - 2 - it appears that it was not a case where the plaint was rejected. This Judgment was delivered by this Court in second appeal and the law has been laid down. So far A.I.R. 2010 Patna 189 is concerned, it appears that in that case real cause of action was not set out in the plaint rather something illusionary had been stated with a view to get out of the scope of Order 7 Rule 11 C.P.C. So far the 2006 (1) P.L.J.R. page-1 is concerned, it appears that in that case, the Apex Court found that the suit was hopelessly barred by law of limitation and, therefore, rejected the plaint under Order 7 Rule 11 D. In the present case at our hand, according to the defendant, the plaintiff has no cause of action for the suit because the property is self-acquired property of the mother of the petitioner and that suit is not maintainable. So far this question is concerned, this is the defence of the defendant in the written statement. At this stage, no finding can be recorded without any evidence. From perusal of the plaint, a copy of which was produced before this Court, it appears that the plaintiff- respondent has set out the details of the fact basing his claim to the extent of half share. Now, therefore, maintainability of otherwise of the suit cannot be decided under Order 7 Rule 11 A of the Code of Civil Procedure at this stage without their being any evidence. The falsity or otherwise of the claim of the plaintiff cannot be weighed viz.-a-viz, the claim of the defendant in the written statement. Likewise, no provision has been shown either before the Court below or before this Court as to under - 3 - which provision of law the plaint is barred as provided under Order 7 Rule 11 D C.P.C. Therefore, it appears that the learned Court below has rightly rejected the application filed by the petitioner. Therefore, the same cannot be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, this writ application is dismissed. Sanjeev/- (Mungeshwar Sahoo,J.)