- (1.)BY the impugned order dtd.14.1.2011 passed by the learned Additional Dist. Judge (Fast Track) No.5, Udaipur in Civil Original Case No.115/2009, the defendant's application under Order 7 Rule 11 C.P.C. has been rejected by the learned trial Court.
(2.)THE learned counsel for the petitioner - defendant submitted that the plaintiffs had claimed partition during the life time of their father which suit was clearly barred. He relied upon the decision of Hon'ble Supreme Court in the case of Commissioner of Wealth Tax V/s Chander Sen reported in AIR 1986 SC 1753.
On the other hand, the learned counsel for the respondents - plaintiffs relied upon the decision of Single Bench of the Bombay High Court in the case of Dr. Nilkanth Krishnarao Apte V/s Dr. Ramchandra Krishnarao Apte reported in AIR 1991 Bombay 10 and submitted that the said suit was not barred.

From a perusal of the impugned order dtd.14.1.2011, it appears that this contention has simply not found place in the impugned order even though the learned counsel for the petitioner - defendant contended that said ground was specifically taken in the application under Order 7 Rule 11 C.P.C. and to which a reply was also filed by the plaintiffs - respondents. This issue has not been discussed in the impugned order.

Having heard the learned counsels, this Court finds that this issue which goes to the root of the maintainability of the suit ought to have been discussed and deliberated upon by the learned court below, but unfortunately, it has not been done.

Consequently, the impugned order deserves to be set aside and the matter deserves to be restored back to the learned trial Court for deciding the application under Order 7 Rule 11 C.P.C. afresh.

(3.)ACCORDINGLY, this revision petition is allowed and the impugned order dtd.14.1.2011 is set aside and the learned trial Court is directed to decide the said application under Order 7 Rule 11 C.P.C. afresh. No order as to costs.