Surjit Singh, J. (Oral):— This appeal by the defendants is directed against the judgment and decree dated 31.7.2009, passed by learned first appellate Court, whereby, accepting appeal filed by respondents-plaintiffs, order passed on application under Order 7 Rule 11 CPC, has been reversed and the matter has been remitted to the trial Court, with a direction to decide the suit on merits, including the points raised in the application under Order 7 Rule 11 CPC.
2. Respondents-plaintiffs filed a suit for declaration that they are owners in possession of certain property, described in the plaint, which is situated in Rohru tehsil of Shimla, on the strength of a Will, executed by Smt. Reshmu, owner of the suit property, in favour of one of the respondents-plaintiffs. Defendants filed written statement, contesting the suit. They denied the execution of the Will by Reshmu, in favour of a predecessor of the respondents-plaintiffs. They also raised the plea that the suit was barred under Order 23 Rule 1 CPC, under Order 9 Rule 8 CPC and under Order 2 Rule 2 CPC.
3. Trial Court framed issues, based on the pleadings of the parties. Issue, pertaining to the plea of appellants-defendants that suit was barred under the aforesaid provisions of CPC, was separately framed. Parties were called upon to lead evidence. When the plaintiffs evidence had been recorded in part, an application under Order 7 Rule 11 CPC was moved by the appellants-defendants, praying for rejecting the plaint, on account of suit being barred under Order 9 Rule 8 CPC, under Order 23 Rule 1 C CPC and under Order 2 Rule 2 CPC. Trial Court allowed that application, holding that the suit was barred under Order 9 Rule 8 CPC, and also under Order 23 Rule 1 CPC and rejected the plaint. Since the order rejecting the plaint is appealable as a decree, appeal was filed before the District Judge. Learned District Judge has accepted the appeal and remitted the case to the trial Court, as aforesaid. Reasons given by the learned first Appellate Court are, that while passing an order on application under Order 7 Rule 11 CPC, Court has to take into consideration only the averments made in the plaint, and not those made in the written statement. In support of this reasoning, learned first appellate Court has placed reliance upon the judgment of the Supreme Court in Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557.
4. This appeal was admitted on the following substantial questions of law:
1. Whether the application under Order 7 Rule 11 CPC filed by the Defendant has to be decided merely on the basis of Plaint and the other material filed by the Defendant in support of this application has to be ignored.
2. Whether the Ld. District Judge Forest Shimla has fallen in error by ignoring the grounds, which weighed with the Ld Trial Court for allowing the application under Order 7 Rule 11 CPC and thus, there has been failure to exercise the jurisdiction in accordance with law.
3. Whether for deciding the application under Order 7 Rule 11 CPC the pleadings of the parties as well as all other material on record has to be kept into consideration which is admissible in law.
4. Whether the provision of law contained under Order 7 Rule 11 CPC and law as laid down by the Hon'ble Apex Court has been misread and misconstrued hence findings are liable to be set aside.
5. I have heard the learned counsel for the parties and gone through the record.
6. It has been conceded during the course of arguments, that the ground that suit is barred under Order 9 Rule 8 CPC, is no longer available to the appellants-defendants, on account of order of dismissal of suit in default, having been set aside by the trial Court and the revision against that order of trial Court, having been dismissed by this Court, during the pendency of the present appeal.
7. As regards the second ground of rejection of plaint, earlier suit pertained to property, situated in Shimla town. Suit, out of which the present appeal has arisen, pertains to properties situated in tehsil Rohru. This aspect of the matter has not been examined by the trial Court, while passing the impugned order. Trial Court has simply observed that same very Will was in question in the earlier suit, which had been withdrawn. Now, whether the withdrawal of that earlier suit, which pertained to property at Shimla, would operate as bar under sub rule (4) of Rule 1 of Order 23 CPC, is a matter, which requires consideration. This question has not been considered.
8. In view of the above stated position, appeal is dismissed and parties are directed to appear before the learned trial Court on 28.10.2010 Trial Court is directed to dispose of the matter expeditiously. Issues having already been framed and plaintiff having led evidence in part, it is directed that the trial Court shall decide the suit in its entirety, by recording findings on all the issues, after affording reasonable opportunity to both the parties, to lead evidence in support of their respective pleas.