SUNDERSHAN KUMAR SETH Vs. PAWAN KUMAR SETH

JUDGEMENT

(1.) The defendant no.1/applicant in a suit for partition filed by his brother against him and his sisters, without filing the written statement, filed the application under 7 rule 11 read with section 151 of Code of Civil Procedure for rejection of the plaint. .

(2.) The defendant/applicant has sought rejection of the plaint of the plaintiff on the ground that the plaintiff has paid a fixed court fees of Rs.20.00 only though the case of the plaintiff is that he is not in possession of the properties to be partitioned and he is claiming possession as a co-owner and thus in view of settled proposition of law, the plaintiff is liable to pay ad-valorum court fees on his alleged 1/6th share in the properties. The plaintiff has valued the suit for the purposes of juisdiction at Rupees Four crores. It is prayed by the defendant no.1 that if the plaintiff fails to pay court fees on his 1/6th share the plaint be rejected.

(3.) The opposition to the application of the defendant by the plaintiff is that the application is malafide and designed to delay the progress of the suit. It was contended by the plaintiff that the settled principle of law is that the plaint is to be read as a whole. In the plaint it is categorically pleaded that the plaintiff is one of the co-owner having 1/6th share in the property left behind by Shri O.P.Seth, father and the possession of defendant no.l is not exclusive and is only constructive and point and since in law possession of one co-owner,is possession of all and therefore the suit has been properly valued for the purposes of Court fees and Jurisdiction and appropriate fixed court fees has been paid and the plaint is not liable to be rejected. The plaintiff also sought dismissal of the application on the ground that without filing the written statement the defendant could not maintain the application for rejection of the plaint under order 7 rule 11 of the Code of Civil Procedure.