IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 594 of 2010 (M/S) Ram Krishna Uniyal S/o Late Sri Balak Ram Uniyal ..……… Petitioner Versus Smt. Nirmala Uniyal W/o Sri Ram Krishna Uniyal ……… Respondent Mr. Piyush Garg, Advocate for the petitioner. Mr. Siddhartha Singh, Advocate for the respondent. Hon’ble Tarun Agarwala, J. Heard Shri Piyush Garg, the learned counsel for the petitioner and Shri Siddhartha Singh, the learned counsel for the respondent. The application of the defendant under Order 7 Rule 1 of the C.P.C. was rejected by the trial court by the impugned order on the sole ground that the application had become infructuous since the written statement had already been filed by the defendant and that an issue on the subject in question could be framed which would be decided accordingly. The petitioner, being aggrieved, has filed the present writ petition. Having heard the learned counsel for the parties, the court is of the opinion that the trial court fell in error in rejecting the application filed under Order 7 Rule 11 of the C.P.C. The settled principle of law is, that the application under Order 7 Rule 11 of the C.P.C. is required to be decided on the allegations made in the plaint and is not required to be decided on the basis of the pleadings made by the defendant in his written statement. A perusal of the provision of Order 7 Rule 11 C.P.C. makes it clear that the relevant facts which are required to be looked into for deciding the said application are the averments made in the plaint. The trial court can exercise such power under Order 7 Rule 11 of the C.P.C. at any stage of the suit, i.e., even before the registration of the plaint or even before the issuance of the summons to the 2 defendant at any time before the conclusion of the trial. In Saleem Bhai & others Vs. State of Maharashtra & others 2003 (1) SCC 557, the Supreme Court held that for the purpose of deciding an application under clauses (a) & (d) of Order 7 Rule 11 of the C.P.C., the averments made in the plaint are germane and the plea taken by the defendant in the written statement was wholly irrelevant at that stage. In the light of the aforesaid, the finding of the trial court that the application under Order 7 Rule 11 of the C.P.C filed by the defendant had become infructuous since the written statement had been filed is patently erroneous. In view of the aforesaid, the impugned order to that extent cannot be sustained and is quashed. The writ petition is allowed. The trial court is directed to decide the application under Order 7 Rule 11 C.P.C. within four weeks from the date of production of the certified copy of this order, after giving full opportunity to the other side. It is, however, made clear that if the trial court is of the opinion that the grounds raised by the defendant are mixed question of law and fact which cannot be decided on the basis of plain allegation in the plaint and which requires evidence, it would be open to the trial court to pass consequential orders. (Tarun Agarwala, J.) Dated 8th October, 2010 Shiv