IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.943 of 2006 KALIKA RAI & ORS Versus JAI PRAKASH SINGH & ORS ----------- 3 11.11.2008 Heard counsel for the petitioners and counsel for the opposite parties. In the opinion of this Court, the impugned order rejecting the prayer of the defendants-petitioners for rejecting the plaint in purported exercise of power under Order VII Rule 11(d) of the Code of Civil Procedure, does not suffer from any jurisdictional error. The Court below infact has gone into the averments in the plaint and has found that the suit in question cannot be at this stage decided to be barred by the provisions under Order XXIII Rule 3(A) of the C.P.C. inasmuch as whether compromise suit was earlier filed in representative capacity or not or whether the suit actually intended to only set aside the decree on the ground that the compromise on which the decree was passed was yet to be examined in the light of the evidence on record. Mr. S.S. Dwivedi learned Senior Counsel appearing for the petitioner, however, has made his elaborate submissions by referring to this passages in paragraph No.8 to paragraph No.22 of the plaint to buttress his submission that as a matter of fact the suit in question was out and out intended to only set aside the earlier compromise decree in Title Suit No. 118 of 1970. He was therefore, of the view that merely because the plaintiffs-opposite parties have very cleverly sought a relief as with regard to the compromise decree being not binding on the plaintiffs should not be the end of the matter because the reading of plaint as a whole went to show that the suit was only for setting - 2 - aside compromise decree. Mr. V. Nath learned counsel appearing on behalf of the plaintiffs-opposite parties however has submitted that as a matter of fact the plaintiffs-opposite parties were in law, entitled to maintain such a suit in view of non-compliance of the mandatory provision of Order XXIII Rule 3(B). He supports himself with a judgment of Division Bench of Karnataka High Court in the case of Siddalingeshwar and others Vrs. Virupaxgouda and others reported in AIR 2003 Karnataka 407. This Court on perusal of the materials on record as also the aforementioned decision of the Division Bench, is of the view that at least from bare perusal of the plaint it cannot be said that the suit of the plaintiffs could have been rejected on the ground of bar under Order XXIII Rule 3(a) of the C.P.C. The facts which have been pleaded before this Court or were stated in the application under Order VII Rule 11 C.P.C. filed by the petitioner are definitely one in the realm of evidence and that cannot be looked into by the Court while considering the application under Order VII Rule 11 of the C.P.C. Infact the rejection of plaint has to be based only on the admitted facts stated and asserted in the plaint as was held by the Apex Court in the case of POPAT AND KOTECHA PROPERTY versus STATE BANK OF INDIA STAFF ASSOCIATION reported in 2005 (7) SCC 510. That being so, this Court does not find any merit in this application. Accordingly, this Civil Revision application is dismissed. Bibhash (Mihir Kumar Jha, J.) - 3 -