IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.654 of 2009 CHANDRA PIR SINGH Versus MEERA DEVI & ORS ----------- 2. 28.04.2009 Heard learned senior counsel for the petitioner. This civil revision application has been filed by the defendant-petitioner against the order dated 13.3.2009 passed by the learned Subordinate Judge III, Barh in Title Suit no. 19 of 2008 by which the learned court below has disposed of the petition of the defendant under Order 7 Rule 11 read with Section 151 of the Civil Procedure Code and has held that the specific issue with regard to maintainability of the suit, as to whether any cause of action is made out in the plaint or not, will be framed and decided in the suit, after written statement of the defendants is filed and evidence of both sides is adduced. Learned senior counsel for the petitioner submits that since in the petition under Order 7 Rule 11 of the C.P.C., question of maintainability of the suit on the ground of lack of cause of action made out in the plaint was raised, the court below was duty bound to consider the petition and dispose of the same at this stage itself. He submits that - 2 - absence of cause of action was a matter which had to be considered and examined only on the basis of the pleadings and statements made in the plaint and it could not await filing of the written statement and recording of the evidence on behalf of the opposite parties. For its own satisfaction, this Court requested the learned senior counsel for the petitioner to produce the said petition under Order 7 Rule 11 of the C.P.C for its perusal and certified copy of the same was made available to this Court by him. From the certified copy of the said petition it appears that the defendant in the said petition has challenged several facts pleaded in the plaint and have also referred to certain documents to prove the falsity of the statements and claims made in the plaint. This shows that the defendant himself has challenged the maintainability of the suit disputing facts mentioned in the plaint on the basis of certain facts and documents, which can only be considered when evidence is adduced in the case. In the circumstances, this Court does not find that the learned court below has committed any error in disposing of the petition of the defendant with observation that a specific issue in this regard - 3 - shall be framed in the suit and the same shall be considered after evidence of both sides is adduced. However, learned senior counsel for the petitioner submits that in law, consideration of a petition filed under Order 7 Rule 11 of the C.P.C. cannot be postponed or deferred and orders on merit on the same have to be passed by the trial court either allowing the same or rejecting the same. In view of the resistance of the learned senior counsel for the petitioner, this civil revision application is disposed of with direction to the learned court below to pass fresh orders on the said petition of the defendant filed under Order 7 Rule 11 read with Section 151 of the C.P.C. after hearing the parties, either allowing or rejecting the same. This application is, thus, disposed of. B.T (J.N Singh, J)