BALIA, J. - (1.) THIS revision is directed against the order passed by learned Addl. Munsif and Judicial Magistrate, First Class; No. 2, Jodhpur on 3. 09. 1992, rejecting the petitioner's application under O. 7 R. 11, C. P. C. , for rejecting the plaint on the ground that the suit is not maintainable in view of the provisions of the Rajasthan Public Trust Act. The application was rejected on the ground that the application appears to be for prolonging the proceedings, particularly in view of the fact that the application for amendment of written statement raising the same issue has been rejected earlier.
(2.) LEARNED counsel for the petitioners states that since then this Court has by its order dated 2. 11. 1992, in Civil Revision No. 440/92, has set aside the order passed by the trial court on 18the May, 1992 and allowed the amendment sought by the petitioners-defendants and permitted them to raise the issue relating to maintainability of the suit under the provisions of the Rajasthan Public Trust Act. Though the reasons for which the application under ( ). 7 R. 11, CPC was rejected on its plain reading, three parties are at dispute whether the Trust is a public trust or not and that being a mixed question of law and facts, necessarily depend upon evidence. In view of allowance of amendment of the written statement, necessary issues will be framed and the parties will be allowed to lead evidence on the issue that arises out of the amended pleadings; and the question can be decided only at the final stage of the trial. In that view of the matter, the revision petition is dismissed. However, it is made clear that any observation made on the merit of the issue relating to maintainability of suit under the Rajasthan Public Trust Act made in the impugned order, shall not be binding on the parties and shall not affect the final decision on merit. .;