KAPILDEO PRASAD Vs. RAMANAND PRASAD

JUDGEMENT

(1.) Heard Shri S. S. Dwivedi, the learned Senior Counsel appearing for the defendants petitioners and Shri Sidheshwari Prasad Singh, learned Senior Counsel appearing on behalf of the plaintiffs-opposite parties.

(2.) The present application is directed against order dated 22-9-2005 passed by the learned Subordinate Judge I, Bettiah in Partition Suit No. 73 of 2004 by which he has rejected the defendants-petitioners" application for rejection of plaint in terms of Order VII Rule 11 of Civil Procedure Code (In short "C P C").

(3.) In substance the defendants-petitioners' claim is that the plaintiffs-opposite parties had earlier filed a Partition Suit as against the defendants-petitioners. In the said Partition Suit, the defendants-petitioners appeared and filed a detailed written statement, inter alia, taking the stand that the properties in question had already been partitioned earlier. There was nothing to partition. Thereafter, when the said suit was taken up for hearing, the plaintiffs did not contest and abandoned the suit. Now another suit for identical relief has been filed. It is submitted on behalf of the defendants - petitioners that in terms of Order IX Rules 8 and 9 of CPC, the fresh suit by plaintiffs- opposite parties was clearly barred for the same cause of action and in respect of the same properties as between the same parties. Accordingly, the fresh suit having been filed, the defendants-petitioners appeared, filed their written statement and also an application in terms of Order VII Rule 11 of CPC for rejecting the plaint as it disclosed no fresh cause of action and was barred in terms of Order IX Rules 8 and 9 of CPC. The plaintiffs opposite parties filed their rejoinder to the said application. The trial Court, after hearing the parties, rejected the application of the defendant-petitioners on the ground that in order to determine whether the plaint ought to be rejected in terms of Order VII Rule 11 of CPC, he had to look only to the plaint. The question, as raised by the defendants-petitioners, involves investigation of facts and questions of law which could not be taken up at this stage. This is what has brought the defendants- petitioners to this Court.