Dismissed

Baby Devi and Anr. v. Kunti Devi

Patna HC13 Mar 2013CWJC/5287/2011

Case brief

AI extract

What is this about?

The Patna High Court, in two interlinked applications, reviewed a trial court's order rejecting objections under CPC Order 7 Rule 11 and permitting substitution of the deceased plaintiff's maternal grandmother. The High Court held that the barred issues require trial by evidence and disposed of the applications.

What did the court decide?

The Civil Revision application and Writ application were disposed of; the High Court found no error in the Lower Court's order.

Baby Devi and Anr. Vs Kunti Devi — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.855 of 2009

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====================================================== 1. Baby Devi, wife of Tanik Prasad Singh 2. Tanik Prasad Singh @ Tanik Singh, Son of Rameshwar Singh Both permanent resident of Village - Bhagwanpur, P.O.- Asarhi, P.S. Muffasil & District - Nawada. presently residing at village - Beldha Dhankole, P.O.- Mosama, P.S.- Warsaliganj, District - Nawada

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.... .... Petitioner/s Versus

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Kunti Devi, wife of Late Mathura Singh, resident of Village - Mai, P.S.- Warsaliganj, District - Nawada

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.... .... Opposite Party/s

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===================================================== with Civil Writ Jurisdiction Case No.5287 of 2011 ===================================================== 1. Baby Devi Wife of Tanik Prasad Singh 2. Tanik Prasad Singh Son of Rameshwar Singh Both permanent resident of Village - Bhagwanpur, P.O.- Asarhi, P.S. Muffasil & District - Nawada. Presently residing at village - Beldha Dhankole, P.O.- Mosama, P.S.- Warsaliganj, District - Nawada

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.... .... Petitioner/s Versus Kunti Devi, wife of Late Mathura Singh, resident of Village - Mai, P.S.- Warsaliganj, District - Nawada

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.... .... Respondent/s

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======================================================

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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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05. 13-03-2013 These two applications arise from a common order dated 20.2.2009 passed by learned Civil Judge, Senior Division-1^st (Sub Judge-I), Nawada in Title Suit No. 22 of 2005, whereby the learned trial court has rejected the objection raised by the petitioners who are defendants in the court below under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as

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Patna High Court C.R. No.855 of 2009 (5) dt.13-03-2013

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the ‘Code’) and by the same order has also rejected the second petition filed by the petitioners objecting to the continuation of the suit in view of the death of the plaintiff and allowing the guardian of the plaintiff who is the sole opposite party to be substituted in place of the plaintiff and to continue the suit.

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Whereas the petitioners has questioned the order rejecting the objection under Order 7 Rule 11 of the Code by filing the Civil Revision, the order rejecting his application objecting to the continuation of the suit even after the death of the plaintiff and the substitution of the opposite party in place of the plaintiff has been questioned in the writ application.

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Mr. Anil Kumar Jha, learned Senior Counsel has appeared for the defendant-petitioners in both the applications and Mr. Arun Kumar, learned counsel has appeared for the plaintiff-opposite party in the matters.

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As both the applications are inter linked, I shall be referring to the Annexure as present in the Civil Revision unless specified with specific reference to the writ application. The objection under Order 7 Rule 11 as placed at Annexure-2 of the Civil Revision application and whereunder the defendants raised the following objections:

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(a) The suit is barred under Section 34 of the Specific Act in

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Patna High Court C.R. No.855 of 2009 (5) dt.13-03-2013

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absence of challenge to the sale deed under which the plaintiff seeks derivative title.

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(b) The plaint does not disclose any cause of action.

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(d) The plaintiff Girani Singh was not a minor and was a major and thus he could not file a suit through a guardian.

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(e) The sole opposite party Kunti Devi is not the natural guardian of Girani Singh to continue the suit.

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The application objecting to the continuation of the proceedings of the suit by the sole opposite party Kunti Devi is placed at Annexure-4 to the writ application. While questioning the status of the sole opposite party, it is contention of the defendants that the sole opposite party not being a natural guardian, the right to sue does not survive after death of the original plaintiff. The order impugned discusses the reasons whereby the trial court while considering the objections has found that the sole opposite party who is the maternal grandmother of the plaintiff was well within her jurisdiction to continue the suit by seeking substitution in place of the plaintiff. It is not in dispute that a grand mother falls within class-2 heir under the

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Patna High Court C.R. No.855 of 2009 (5) dt.13-03-2013

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Hindu Succession Act and thus has a right to pursue the matter. Whether despite this position the plaintiff would be entitled to any relief, is a matter best left for adjudication by the trial court and this Court would not express any opinion thereon. Thus insofar as the impleadment is concerned, the substitution of the sole opposite party in place of the plaintiff suffers from no error. Coming to the objection raised under Order 7 Rule 11, a cursory glance of the objection raised as also noted hereinbefore leaves no room for doubt that the said issues cannot be settled without permitting the parties to lead evidence in support of their respective claims.

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In that view of the matter, I am not persuaded to interfere with the order(s) impugned in the two applications and the Civil Revision application as well as the writ application are accordingly disposed of.

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(Jyoti Saran, J)

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S.Sb/-

Baby Devi and Anr. v. Kunti Devi

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Baby Devi and Anr. v. Kunti Devi

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