RAVINDRA SINGH Vs. ASHISH MANI TRIPATHI AND ANR.

JUDGEMENT

(1.) Heard learned counsel for the appellant and have perused the record.

(2.) The present appeal has been filed under Order XLIII Rule 1 (U) of the Code of Civil Procedure (hereinafter referred to as the 'CPC') challenging the order passed by the lower appellate Court dated 29.10.2015 whereby judgement and decree dated 29.3.2013 passed by the Civil Judge (Junior Division), Kasya, Kushi Nagar rejecting the plaint of Original Suit No. 999 of 1997 ( Musmmat Imarata vs. Ravindra Singh) under the provisions of Order VII Rule 11 (d) of the CPC was set aside and suit was restored to its original number.

(3.) The facts relevant for the present controversy are that Musmmat Imarata (now deceased) filed a suit being Original Suit No. 999 of 1997 for cancellation of Will dated 21.9.1992 and for decree of permanent prohibitory injunction against the present appellant - Ravindra Singh who was stated to be 17 years of age at the time of filing of the suit. In paragraph 9 of the plaint, it was stated that the age of the present appellant herein was 13 years 10 months and 9 days on the date of execution of the Will and on the date of filing of the suit, he was 17 years 4 months and 15 days old. The appellant herein filed an application dated 24.8.2012 (paper no. 91 -C) before the trial Court that at the time of filing of suit he was aged about 17 years and admittedly, as per the plain allegation, he was 17 years and thus minor, and that no application under Order XXXII Rule 3 CPC has been filed by the plaintiff, therefore, the suit is not maintainable and plaint is liable to be rejected. This application was allowed by the trial court vide order dated 29.3.2013 and the plaint was rejected under Order VII Rule 11 (d) of CPC on the ground that as per the plain allegations the appellant was 17 years of age and as such, the suit was barred by law. The aforesaid judgement and decree was challenged by the plaintiff before the lower appellate Court by filing an appeal being Civil Appeal No. 0100020 of 2013, which was allowed by the lower appellate Court on the ground that the defendant (appellant herein) had not filed any affidavit in support of his application (paper no. 91 -C) and had not produced any evidence whereas under Order XXXII Rule 3 (1) CPC the Court must satisfy about the minority of the defendant and this effort was not done by the trial Court, and therefore, the judgement and decree dated 29.3.2013 was set aside and the suit was restored to its original number.