KAMALA & ORS. versus K.T. ESHWARA SA & ORS.

KAMALA & ORS. versus K.T. ESHWARA SA & ORS.

Order VII Rule 11(d) of the Code of Civil Procedure has limited application and only averments in the plaint can be looked into. Since the questions such as whether the property is available for partition or the applicability of res judicata require evidence and are issues of fact or mixed questions of law and fact, the plaint could not be rejected at the threshold. The trial court and High Court erred in rejecting the plaint; the appeal is therefore allowed and such issues remain open for adjudication at the appropriate stage.

Parties
Appellant: Kamala & Ors.; Respondent: K.T. Eshwara Sa & Ors.
Jurisdiction
India
Judgment Date
29 April 2008
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal allowed.
Legal Topics
Order VII Rule 11 CPC, Partition Suit, Res Judicata, Bar of Suit by Law
Civil Procedure Family Law Order VII Rule 11 CPC Partition Suit Res Judicata Bar of Suit by Law

Case Brief

Summary, issues, holding and outcome

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Parties

Kamala & Ors.

Appellant

K.T. Eshwara Sa & Ors.

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the plaint was liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1973 as being barred by law.
  2. 2 Whether the suit for partition was maintainable after a preliminary decree and dismissal of the final decree proceedings for default.
  3. 3 Whether questions of res judicata and partition can be adjudicated under Order VII Rule 11(d).

Ratio Decidendi

Order VII Rule 11(d) of the Code of Civil Procedure has limited application and only averments in the plaint can be looked into. Since the questions such as whether the property is available for partition or the applicability of res judicata require evidence and are issues of fact or mixed questions of law and fact, the plaint could not be rejected at the threshold. The trial court and High Court erred in rejecting the plaint; the appeal is therefore allowed and such issues remain open for adjudication at the appropriate stage.

Court Disposition

Appeal allowed.

Orders

  • Impugned order set aside.
  • Parties at liberty to raise all contentions before the Trial Judge at appropriate stage.