- (1.)This Misc. Appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure (in brief "the Code") is filed against the judgment dated 11-8-2014 passed by Second ADJ, Barwani in Civil Appeal No. 13-A/2014, by which he set aside the order dated 14-1-2013 passed by Civil Judge, Class II, Rajpur in Civil Suit No. 15-A/2012 and the matter was remanded back to the Trial Court. Brief facts of this case are that the respondent No. 1/plaintiff has filed a suit for declaration, possession and mesne profits in respect of Khandhar and appurtenant land described in Para 2 of the plaint (for short "suit property"). The appellant/defendant No. 1 has filed an application under Order VII Rule 11 of the Code, which was allowed and consequently the plaint filed by the respondent No. 1/plaintiff was rejected. However, the compensatory cost has not been awarded to the appellant. Then the respondent No. 1/plaintiff has filed Civil Appeal No. 13-A/2014. The appellant/defendant No. 1 has also filed Civil Appeal No. 12-A/2014 against non-award of compensatory cost. Both the appeals were decided by the impugned judgment by which the appellant's appeal was dismissed; whereas the respondent No. 1/plaintiff s appeal was allowed and the set aside order passed by the Trial Court and the matter was remanded back to the Trial Court for deciding the suit after framing the issues and recording the evidence. Being aggrieved with this judgment, the appellant has filed this appeal.
(2.)Learned Senior Counsel for the appellant submits that at the time of considering the application under Order VII Rule 11 of the Code, the Court has to consider the averments made in the plaint and the plea taken by the defendants in the written statement would be wholly irrelevant at that stage. Therefore, a direction of the learned Appellate Court that the application be decided after framing of the issues and taking evidence is not justified. For this purpose he placed reliance on the judgment of Hon'ble Apex Court in the case of Saleem Bhai Vs. State of Maharashtra, 2003 1 SCC 557.
(3.)Learned Senior Counsel for the appellant further submits that considering the averments made in the plaint as a whole and considering the documents, it is clear that the suit is apparently barred by law of Limitation. Therefore, the plaint can be rejected in exercise of power under Order VII Rule 11(d) of the Code. For this purpose, he placed reliance on the judgment of Hon'ble Apex Court in the case of Hardesh Ores (P) Ltd. Vs. Hede & Company, 2008 1 MPLJ 30.