About ia under order 7 rule 11

Sandeep ji it is not allowed now since prayer clause is different for same cause of action.

If u think it is solution of ur problem then will u give THANK on my profile?

Sandeep,plaintiff's objection is not tenable.your earlier application u/o 7 r 11 of cpc was on ground of insufficient court fees which is very weak ground. if court fees hasn't been paid sufficiently,court generally grants time/chance to pay required fees to plaintiff and not reject the plaint.your present application u/o 7 r 11 of cpc is based on ground of " barred by law"which is very strong and solid ground for rejection of plaint.Also principles of res Judicata doesn't apply in filing the said application.

Yes  I agree with Mr Goyal. SInce the plaint now becomes barred by law , the fresh application is tenable and maintainble. For your reference you may go through the judgement of Virender Kumar DIxit vs State of UP -2014(9) ADJ 1506 which states that the definition of law in order 7 rule 11 includes judicial pronouncements as well.

Augustine Chatterjee

Advocate & Solicitor at Law

9999931153

Hello Goyal Sir and Everyone,

I am really thankful to all of you for your support. There is one confusion. The IA which I have filed is only based on the fact that father is not alive therefore plaintiff is not entitle to any share in coparcenary property according to the supreme court and plaint has to be rejected.

If you see the judgement of Supreme Court also held in the second part that “Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. This means that when succession is opened in 1998 in the present case, coparcenary rights should have been decided as per the applicable law of that point of time.

In the state of Karnataka Hindu succession (Karnataka amendment) act was applicable before 2005. According to this act married daughter before 1994 was excluded from the benefit. Since plaintiff was married before, she has no right as per earlier state law as well.

My confusion is that neither we have covered anything in our IA about the second part of judgement by saying that since plaintiff was married before 1994 she is not entitled for any share as per the applicable law prior to 2005 nor plaintiff has come up with any such objection in the written statement because she cannot lie to the court by saying that she was entitled to the share as per earlier law.

I have below questions.

1. If plaintiff has not even raise such objection in her written statement therefore should we still need to include these points in our written argument or should be keep silent on this part since she has not brought any such objection?
2. Dose court consider the evidences at the intermediate stage if we bring the above point by producing the birth certificate/Aadhar card of the elder son to prove that she was married before 1994?
3. In order 7 rule 11 court only look into the plaint and there is only date of death of father mentioned. There is no other information which can tell the court whether she was entitle to any share according to the applicable law prior to 2005. Will it have adverse effect on our IA by bringing these points at this stage particularly when she has not brought these points in her written statement as well. 

Thanks and Regards,

 

Hi Everyone,

I am really thankful to all of you for your support. There is one confusion. The IA which I have filed is only based on the fact that father is not alive therefore plaintiff is not entitle to any share in coparcenary property according to the supreme court and plaint has to be rejected.

If you see the judgement of Supreme Court also held in the second part that “Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. This means that when succession is opened in 1998 in the present case, coparcenary rights should have been decided as per the applicable law of that point of time.

In the state of Karnataka Hindu succession (Karnataka amendment) act was applicable before 2005. According to this act married daughter before 1994 was excluded from the benefit. Since plaintiff was married before, she has no right as per earlier state law as well.

My confusion is that neither we have covered anything in our IA about the second part of judgement by saying that since plaintiff was married before 1994 she is not entitled for any share as per the applicable law prior to 2005 nor plaintiff has come up with any such objection in the written statement because she cannot lie to the court by saying that she was entitled to the share as per earlier law.

I have below questions.

1. If plaintiff has not even raise such objection in her written statement therefore should we still need to include these points in our written argument or should be keep silent on this part since she has not brought any such objection?
2. Dose court consider the evidences at the intermediate stage if we bring the above point by producing the birth certificate/Aadhar card of the elder son to prove that she was married before 1994?
3. In order 7 rule 11 court only look into the plaint and there is only date of death of father mentioned. There is no other information which can tell the court whether she was entitle to any share according to the applicable law prior to 2005. Will it have adverse effect on our IA by bringing these points at this stage particularly when she has not brought these points in her written statement as well. 

Thanks and Regards,