P SUBBIAH GOUNDER Vs. SAKTHI GOPALA KRISHNAN

JUDGEMENT

(1.) AS against the the dismissal of the I. A. No:963 of 2004 filed by the revision petitioner/second defendant under Order 7 Rule 11 CPC, to reject the Plaint, this revision has been filed.

(2.) ACCORDING to the revision petitioner, there is no proper cause of action for instituting the present suit by the respondent/plaintiff, because in all the earlier proceedings before various forums, the first defendant has has lost his case and now instigated the other plaintiffs to file the present suit. But the learned District Munsif, Pollachi, accepting the averments of the plaintiffs as well as the decisions of the Apex Court, dismissed the said I. A. , holding that maintainability of the suit has to be decided on the averments contained in the plaint and any allegation that the earlier decisions will bind the plaintiffs and there is there is no cause of action or the issue of limitation could be determined only after letting in sufficient evidence in that regard during trial. Aggrieved over the same, the present revision has been preferred.

(3.) MR. KANNAN, Learned Counsel appearing for the revision petitioner would contend that the trial Judge failed to look into the Section 97 of the Indian Succession Act. According to him, as per the Will, the plaintiffs do get any share in the suit properties. Further the sale deed dated 28. 10. 1972 is not void, but can only be voidable and that a suit for partition will not lie without setting aside the sale. Therefore, the present suit is nothing but sheer abuse of process of law.