CYPRIAN DSOUZA Vs. RENE DSOUZA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in O. s. No. 96/96 on the file of Principal Judge, the Family Court, Bangalore, whereby the family Court has rejected the plaint by allowing the application filed by the respondent-defendant under Order 7 Rule 11 (D) of the Code of Civil Procedure.

(2.) AGGRIEVED plaintiff who is also the husband of the respondent, is in appeal before us. The appeal had been initially preferred as a Miscellaneous Appeal under Order 43 Rule 1 and has been later permitted to be treated as an appeal under S. 19 (1) of the Family Courts Act, inasmuch as the rejection of the plaint amounts to a decree and the decree having been passed by the Family Court, a Miscellaneous Appeal under S. 19 alone was maintainable.

(3.) BRIEF facts of the appeal are that the parties are husband and wife and are Christians by faith. The plaint averments inter alia indicated that in respect of the suit schedule property viz. a residential house, the husband - plaintiff had claimed equal share, though it stood in their name and the property itself being jointly held by them. The husband had sought for partition, separate possession of his undivided share in the property and for such other incidental reliefs had presented the plaint. The plaint itself had been presented through a duly constituted agent one by name S. P. Naidu representing the plaintiff who at the relevant point of time was averred to be residing at Middle East in connection with his avocation.