Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No.1040/20 in SU No.3642/13
MHCC010029312020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO. 1040 OF 2020
IN
S.C.SUIT NO. 3642 OF 2013
Shri Lolarakhnath Ram Khilawan Yadav …. Plaintiff
Versus
Shri Baijnath Ramkhilawan Yadav …. Defendant
CORAM : HIS HONOUR JUDGE S. K. FOKMARE
C.R.NO..
: 64.
DATE : 08.07.2026.
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Adv. Mr. M.K.Gupta h/f Adv. Mr. Shailesh Gupta for plaintiff.
Adv. S.B. Singh for defendant.
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ORAL ORDER
(DICTATED IN OPEN COURT)
1. The present Notice of motion is taken out by defendant No.1
for rejection of plaint as per Order 7 Rule 11 of the Code of Civil
Procedure (hereinafter referred as ‘CPC’).
2. Perused notice of motion and affidavit in reply given on behalf
of the plaintiff. Heard Ld. Counsel for both sides at length. I have
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given my thoughtful consideration to the submissions advanced by
Ld. Counsels for both sides.
3. On the basis of pleading and documentary material placed on
record following points are arise for my determination to which I
have recorded my findings of the reasons to follow:-
Sr.
No.
Points Findings
1. Whether the plaint discloses the cause
of action ?
In the affirmative.
2. Whether the plaint appears from the
statement to be barred by the law ?
In the negative.
3. What order? As per final order.
Reasons
4. As to point No. 1 to 3: -
While deciding the point under Order 7 Rule 11 of CPC only
averments in the plaint have to be read as a whole. While deciding
the point under Order 7 Rule 11 of CPC court cannot travel beyond
statements in the plaint, court have to decide questions pertaining to
rejection of plaint only within corners of the plaint. Court cannot step
out a plaint and certainly cannot enter into the merits of the case and
same is not permissible under law.
5. Here in case in hand the suit claim instituted by plaintiff
is for partition and separate possession of the suit property. It is not in
dispute that plaintiff and defendants are the family members. Plaintiff
has prayed for effecting partition in suit property. On the other hand,
defendant No.1 by way of this notice of motion has prayed for
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rejection of plaint by contending that in view of the affidavit sworn by
his father and that of the Power of Attorney executed by other
defendants, the plaintiff has no legal right to claim partition in the
suit property. It has been contended by the Counsel for defendants
that there is nothing with plaintiff to show that he has a right, title or
interest in the suit property. It has been contended that as per
documentary material on record it is defendants who are entitled to
retain the suit property.
6. However, as discussed above while deciding the point
under Order 7 Rule 11 of CPC court cannot travel beyond statements
in the plaint. It is for the court to decide questions pertaining to
rejection of plaint only within corners of the plaint. Here plaintiff is
claiming to be the joint owner to the extent of 1/6th share in the suit
premises. As per plaint Exh.1 cause of action is seems to be accrued
to the plaintiff to institute the suit claimed. From plaint Exh.1 it
seems that the plaint discloses a cause of action. Whether plaintiff has
any legal right to claim partition in the suit property would be
decided on merit. At this stage it cannot be said that the suit claim
instituted by plaintiff is liable to be dismissed. At this stage there is
nothing to hold that the suit claim is barred by law. Thus, I find no
merit in notice of motion. Accordingly I answer point no.1 in
affirmative, point no.2 in negative and answer the point no.3, I pass
the following order:
ORDER
1. Notice of Motion No. 1040 of 2020 stands
rejected.
2. Cost in cause.
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3. Notice of Motion stands disposed off accordingly.
Date : 08.07.2026
Place : Mumbai.
(S. K. FOKMARE),
AD-HOC Judge,
City Civil & Sessions Court,
Greater Mumbai.
Dictated and typed on : 08.07.2026.
Signed on : 08.07.2026.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
DATE : 08.07.2026, AT 05.56 pm Mrs. Manisha S. Putta
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) : SHRI S. K. FOKMARE. C.R.NO.64.
Date of pronouncement of
judgment/order
: 08.07.2026.
Judgment/order signed by the P.O. on : 08.07.2026.
Judgment/order uploaded on : 08.07.2026, AT 5.56 P.M.
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