SAHIDULLAH MUNSHI,J. - (1.) The Court : This G.A. No.113 of 2016 has been filed by the added defendant no.4 praying for framing an issue with regard to maintainability of the suit as referred to in paragraph 35 of the said petition so that the same can be decided as a preliminary issue. Paragraph 35 is quoted below : "Your petitioner thus submits that the issue whether the suit filed is maintainable at the instance of the plaintiff in view of the bar created under Section 78 of the Trust Act be decided as a preliminary issue under the provision of Order 14, Rule 2 of Code of Civil Procedure.".
(2.) Accordingly, the plaintiff has also made a prayer that suit being C.S. No.48 of 2013 be set down for hearing on the preliminary issue to be framed in terms of prayer (a) of the petition. In the petition it has been contended by Gaurav Surana, the petitioner/defendant no.4 that he is the son of the plaintiff in the instant suit. The defendant nos. 1 and 2 are his grandfather and grandmother respectively and defendant no.3 and proforma-defendant are his uncle. In support of such submission he has relied on a genealogical chart of Surana family which has been annexed as Annexure 'B' to the petition. It is undisputed that defendant no.4 was left out in the suit. He filed an application and on his prayer this Court allowed him to be impleaded as an added defendant no.4. The said order was passed on 11th December, 2013 by a Hon'ble Single Judge of this Court against which an appeal was preferred being A.P.O.T. No.578 of 2013. The said appeal was disposed of by upholding the order passed by the learned Single Judge on 11th December, 2013. A Special Leave Petition arose therefrom and it is submitted at the Bar that the said Special Leave Petition was also dismissed by the Hon'ble Apex Court. After being so added as defendant no.4, he filed an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of the plaint. The said application, however, was dismissed by an order dated 22nd April, 2015. An appeal was filed from the said order dated 22nd April, 2015 and the Hon'ble Division Bench, by an order dated 8th June, 2015, disposed of the said appeal holding, inter alia, that if the appellant/defendant brings to the notice of the Court how the suit is not maintainable after filing of written statement before the learned Single Judge, it would be for the learned Single Judge to frame issues and allow preliminary issue to be decided. Hon'ble Division Bench also held that if no evidence is required to decide such issue, such issue is to be taken as preliminary issue and the same shall be disposed of. In such background fact, the defendant no.4, after filing written statement, has come up before this Court for a decision as to whether the suit filed by the plaintiff should be allowed to continue for trial or the preliminary issue should be settled on the issue of law as prayed for. In order to be acquainted with the rival claims of the plaintiff and the defendants, some amount of pleadings of the parties are required to be taken note of.
(3.) The plaintiff, Hem Prakash Surana, filed the suit against five persons of which defendant nos.1 to 4 are principal defendants and defendant no.5 is proforma-defendant.;