LAXMI NARAIN SHAHI Vs. USHA KIRAN AND ORS.

JUDGEMENT

(1.) THIS petition under Article -226 of the Constitution of India has been filed by the petitioner (who was defendant in Partition Suit No. 182 of 2006) for quashing the order dated 09 -04 -2010 passed by Sri Om Prakash Singh, learned Sub Judge -VIII, Muzaffarpur in Partition Suit No. 182 of 2006 by which and whereunder, he rejected the petition dated 15 -03 -2008 filed on behalf of the petitioner and refused to reject the plaint of Partition Suit No. 182 of 2006 under the provision of Order 7 Rule 11 of the Civil Procedure Code.

(2.) THE brief fact is that the respondent No. 1 namely, Smt. Usha Kiran filed Partition Suit No. 182 of 2006 in the court of Sub Judge, Muzaffarpur against the petitioner for partition of the suit property. The petitioner appeared in the aforesaid suit and filed a petition on 05 -03 -2008, praying therein to reject the plaint of the aforesaid suit as the aforesaid suit does not disclose any cause of action and Hindu Succession (Amendment) Act, 2005 has no retrospective effect. The learned Sub Judge rejected the aforesaid petition, passing the impugned order dated 09 -04 -2010 against which, this petition has been filed.

(3.) THE case of the petitioner before learned Sub Judge was that the Hindu Succession (Amendment) Act, 2005 has been made effective w.e.f. 09 -09 -2005 and prior to coming into force of the aforesaid amendment, the suit property was allotted to the petitioner and, therefore, the aforesaid property became the self -acquired property of the petitioner and, therefore, the respondent No. 1 has got no share in the self -acquired property of the petitioner. Since the plaint of Partition Suit No. 182 of 2006 does not disclose any cause of action, therefore, the plaint of Partition Suit No. 182 of 2006 was liable to be rejected under the provision of Order VII Rule 11 of the CPC. Furthermore, the case of the petitioner was that the present Partition Suit No. 182 of 2006 was hit by the principle of res judicata as the claim of the respondent No. 1 had already been rejected by learned Sub Judge in Partition Suit No. 172 of 2003 and the order passed in Partition Suit No. 172 of 2003 has already attended its finality.