Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.3745/2019 in
SU No.6808/01
MHCC010101732019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO. 3745 OF 2019
IN
S.C.SUIT NO. 6808 OF 2001
(HIGH COURT SUIT NO.295 OF 2001)
Smt. Usha WD/O Shamlal Arya (LUND)
and ors. …. Plaintiff
Versus
Smt. Kalavanti wd/o Kisanchand
Arya(LUND)
Since Deceased through Lrs.
1(a) Smt. Roshni Haresh Dauda And ors. …. Defendants
Appearance :-
Adv. Poonam Madhvani for Plaintiff.
Adv. M.S. Bhandari for Defendant No.5
CORAM : SHRI S.K.FOKMARE
AD-HOC JUDGE, (C.R.NO.64)
DATE : 23.07.2026
O R D E R
(DICTATED IN OPEN COURT)
1. The present Notice of motion is taken out by defendant
No. 5 for rejection of plaint as per Order VII Rule 11 of the Code of
Civil Procedure (hereinafter referred as ‘CPC’).
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2. Perused notice of motion, affidavit in support and the
reply given on behalf of the plaintiffs. Heard Ld. Counsel for both
sides at length. I have given my thoughtful consideration to the
submissions advanced by Ld. Counsels for both sides.
3. On the basis of pleading putforth in plaint Exh.1 and the
documents annexed with the same 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
As to point No. 1 to 3: -
4. While deciding the point under Order VII Rule 11 of CPC
only averments in the plaint have to be read as a whole. While
deciding the point under Order VII Rule 11 of CPC court can not
travel beyond statements in the plaint, court has 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 properties left by one
Kisanchand Arya. It is not in dispute that the plaintiffs and defendants
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are the legal hairs of late Kisanchand Arya. According to plaintiffs
Kisanchand died on 10.02.1974 leaving behind immovable
properties and one business. The suit claim was instituted before this
court on 01.10.1977. Thereafter in the ground of jurisdiction plaint
was written in the suit was presented before honorable high court .
Again from honorable high court the suit has been transferred to this
court for its further disposal in accordance with law.
6. By way of present notice of motion taken in 2019, It is
the contention of defendant no.5 that the suit claim is not tenable
and the plaint is liable to be rejected as per Order VII Rule 11(a) and
(d) of CPC 1908. It has been contended by defendant No. 5 that the
pleas taken by plaintiffs in the suit are mutually destructive pleas. It
has been contended that plaintiffs are not aware about the nature of
suit properties. It has been contended that the plaintiffs have not
added all legal hairs of late Kisanchand as defendants in this suit. It
has been contended that the plaint Exh.01 dose not disclose any
cause of action. In some and substance it is the contention of
defendant No. 5 that the plaint is liable to be rejected.
7. Considering the objections raised by defendant No. 5, if
we go through the provisions of law, it is basic principle of law that if
the plaint filed by plaintiff does not disclose any cause of action, the
court can reject the plaint. However in order to reject the plaint on
this ground court must look at the plaint, document annexed with the
same and at nothing else. Herein case at hand according to defendant
No. 5 the plaint does not disclose any cause of action and further
according to her there is no cause of action for institution of the suit.
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8. However, on perusal of overall pleading putforth in plaint
Exh.1, it seems that the plaint discloses the cause of action for
institution of this suit against defendants. The suit claim instituted by
plaintiff is for partition and separate position of the property left by
late Kisanchand. As per plaint Exh. 01 the cause of action for
institution of this suit arose after death of Kisanchand dt.10.02.1974.
Thus its seems that there is cause of action for plaintiffs to institute
this suit. Thus considering the recitals of plaint Exh.1 it seems that
the plaint discloses the cause of action.
9. The counsel for defendant No 5 argued that the pleas
putforth by plaintiffs are self destructive. It has been argued that the
suit is bad for non joinder of necessary parties. It has been argued
that plaintiffs are not aware wether the suit properties are join family
properties or self acquired properties of late Kisanchand. The
plaintiffs are not aware wether the properties belongs to partnership
firm. The plaintiffs are not aware wether any administrator was
appointed. It has been argued by counsel for defendant No. 5 that the
plaint is liable to be rejected.
10 In support of these argument the counsel for defendant
No. 5 relied upon the case of i) DEVASHAYAM (DEAD) BY LRS. vs P.
SAVITHRAMMA AND OTHERS (2005) 7 SCC 653. ii) SHYAMLAL
BIHARILAL PANDEY VS. RELIANCE INFRASTUCTURE LTD AND
OTHERS 2009 (2) Mh.L.J.
11. On the other hand the counsel for plaintiffs in support of
the tenability of suit has relied upon the case of i) Indian Oil
corporation limted versus Ramesh Wasanji Karia and others 2017 (3)
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All. M.R. 544 ii) Indian Performing Right Society Limited vs. Kala
Academy and another 2016 (2) Goa LR 207. I have thoroughly gone
through the guidelines given in the cited by defendant No. 5 and
plaintiffs. Here the defendant No. 5 have raised the points which
required to be raised during defense. The points raised by defendant
No.5 can not be considered for deciding the application under order
VII Rule 11 of CPC 1908. The points raised by defendant No. 5 are
about mixed questions of law and facts. These points can not be
decided without going for trial.
12 Here for dismissal suit claim or for rejection of plaint it is
for defendant No 5 to bring her objections within the ambit of Order
VII Rule 11 of CPC. However on perusal of the notice of motion it
seems that there is nothing with defendant No.05 to bring her
objections within ambit of Order VII Rule 11 of CPC. There is no
cogent reasons with defendant No.05 as provided in Order VII Rule
11 of CPC for claiming rejection of plaint or dismissal of the suit
claim.
10. Here the suit claim instituted by plaintiffs is purely of
civil nature. It discloses the cause of action. The points raised by
defendant No. 5 can not be considered at this stage. Wether the
please raised by plaintiffs are self destructive can be considered
during trial. The grounds raised by defendant No.5 are the grounds of
trial. At this initial stage these grounds cannot be considered for
dismissal of suit or rejection of plaint Exh.1. 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
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the following order:
ORDER
1. Notice of Motion No.3745 of 2019 is rejected.
2. Cost in cause.
3. Notice of Motion stands disposed off accordingly.
Date : 23.07.2026
Place : Mumbai.
(S. K. FOKMARE),
AD-HOC Judge,
City Civil & Sessions Court,
Greater Mumbai.
Directly dictated on PC : 23.07.2026
Checked & Signed on : 23.07.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
Mrs. Neelam More	23.07.2026 5.45 PM
Name of the Judge (With C.R. No.) HHJ S.K.FOKMARE (C.R.No. 64)
Date of Pronouncement of
JUDGEMENT /ORDER
23.07.2026
JUDGEMENT /ORDER signed by P.O.
on
23.07.2026
JUDGEMENT /ORDER uploaded on 23.07.2026
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