1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6790 OF 2009 Dosu Ardeshir Bhiwandiwalla ...Petitioner vs. Naju Behramgore Bhiwandiwalla & Ors ...Respondents Mr.Yogesh Dandekar for the petitioner Mr.Dinyor Madan, Sr.Advocate i/b Mr.Tushar Bhavsar and Mr.Nisha Valani for the 1 st respondent Mr.Shriram Kulkarni for the respondent No.4 CORAM :A.S.OKA,J. DATE : OCTOBER 9, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned senior counsel for the first respondent. Without prejudice to the rights and contentions of the first respondent, the learned Senior Counsel for the 1 st respondent states that the said respondent has no objection if application at Exhibit-44 is ordered to be heard and decided by the trial court provided the application at Exhibit-5 and 27 made by the first respondents are also directed to be heard. 2 The grievance of the petitioner is that the applications filed by the petitioner at Exhibit-44 and 45 are ordered to be heard along with the main application. The application at Exhibit-44 purports to invoke the powers of the court under Rule 11 of Order VII of the Code of Civil Procedure,1908. The application at 2 Exhibit-44 will have to be heard in asmuch as a prayer for rejection of a proceeding can be considered at any stage. It is, however, obvious that the said application will be considered on the basis of the averments made by the first respondent in the application no.9 of 2009 and the parties cannot be allowed adduce evidence for deciding the said application. The scope of enquiry in so far as said application is concerned is very limited in terms of clause (d) of rule 11 of the Order VII of the said Code. 3 As far as application at Exhibit-45 is concerned, the same cannot be considered at this stage as the plea of res judicata raised therein will have to be considered at the time of final hearing of the main application. As the application made by the petitioner at Exhibit-44 is being ordered to be heard, the first respondent cannot be prevented from prosecuting the applications at Exhibit-5 and 27. Hence, the petition must partly succeed accordingly. 4 Hence, writ petition is disposed of by passing the following order : i) Impugned order dated 13 th June 2005 is modified and the trial court is directed to consider and decide the applications at Exhibit-5 and 25 and 44 before 3 the main application is heard. It is made clear that the application at Exhibit-44 will have to be heard only on the basis of the averments made in the application no.9 of 2009 and the parties will not be entitled to lead evidence at the time of hearing of the application at Exhibit 44. It is also made clear that the application at Exhibit-45 will be considered by the trial court at the time of hearing of the main application. ii)Needless to say that the trial court will hear all the parties to the application no.9 of 2009. iii)It is obvious that the if the application at Exhibit 44 is rejected, the first respondent will be entitled to lead evidence in support of the main application. JUDGE