SANJAY MADANCHAND KASHYAP Vs. MOOLCHAND SAHEBLAL KASHYAP

JUDGEMENT

(1.) Rule returnable forthwith. Heard by the consent of learned Counsel for the respective parties.

(2.) The petitioner has questioned legality and validity of order dt. 4.1.2014 passed by the Civil Judge (Sr.Dn.), Nagpur in Special Civil Suit No.769 of 2012 by which application Exh.19 for dismissal of the suit was rejected and application Exh. Nos. 20 and 21 are allowed and summons was directed to be issued against defendant nos. 5 to 9, 11 and 14 on payment of process fees.

(3.) The facts, briefly stated, are as under : Special Civil Suit No.769 of 2012 for partition, separate possession and damages was filed. The plaintiff had claimed 1/7th share in the suit property with a prayer for preliminary decree, inquiry into mesne profit, cost of the suit etc. The said suit was instituted by Moolchand Saheblal Kashyap against fifteen persons given family history and relationship between the parties alleging that Saheblal (father of the plaintiff) was karta of the joint hindu family. After his demise, Moolchand Kashyap became karta of the family. Saheblal had acquired property in his name as well as jointly along with his sons. Thus, the plaintiff had claimed 1/7th undivided share in the joint family property and the suit was instituted for partition and separate possession of the said share. It appears that defendant nos. 1 to 4, 10 and 15 were served with suit summons in the month of December, 2012. Defendant nos. 12 and 13 were served subsequently on 6.2.2013. On 29.6.2013, an application (Exh.19) was moved by defendant no.1 in the suit for dismissal of the suit against defendant nos. 2 to 9, 11 and 14, while application Exh. Nos. 20 and 21 were made for grant of permission to serve the defendants. The first defendant in the suit alleged that the plaintiff had not taken steps to serve the defendants and under Order IX, Rule 5 of the Code of Civil Procedure since the plaintiff did not apply within two months of return of summons, the Court is under obligation to dismiss the suit.