CIVIL REVISION No.777 OF 2002 -------- SHREEMANT KUMAR CHOUDHARY ----- Petitioner Versus VIJAYWANT KUMAR CHOUDHARY & ORS ----- Opposite Parties ------- For the petitioner : Mr. Dharmesh Kumar, Advocate For opposite parties: M/s S.K.Verma, Senior Advocate. J.K.Verma & Abhay Shankar Singh, Advocates P R E S E N T THE HON'BLE MR. JUSTICE S.N. HUSSAIN S.N.Hussain,J. Heard learned counsel for the parties. 2. This civil revision has been filed by the defendant-petitioner challenging order dated 04.03.2002 passed in Title Suit No.11 of 1998 by which learned Subordinate Judge, 5, Samastipur, dismissed petition dated 21.11.1998 filed by defendant-petitioner under the provision of Order VII Rule 11(a) and (d) of the Code of Civil Procedure (hereinafter referred to as the ‘Code’ for the sake of brevity) 3. The aforesaid suit was filed by the plaintiffs-opposite parties for dissolution of the business of Motorists Home situated in Village Nawadah in the district of Samastipur and division of assets by appointment of Advocate Commissioner and separation of the plaintiffs’ share through the process of the court and for other ancillary reliefs. The said suit was contested by defendant-petitioner and before the hearing of the suit could start the defendant-petitioner filed a petition under Order VII Rule 11 of the Code on 21.11.1998 for rejection of the plaint due to bar of Section 10 of the Companies Act, 1956. A rejoinder to the said petition was filed by the plaintiff. However, the learned court below dismissed the said petition filed by the defendant only on the ground that the said issue will be one of the issues to be decided finally in the suit and hence there was no occasion to decide that question at this initial stage. 4. Considering the facts and circumstances of the case as well as the materials on record, including the impugned order, it is quite apparent that the issue with respect - 2 - to the maintainability of the suit in view of the provision of Section 10 of the Act could have been decided by the learned court below at this stage itself by perusing the pleadings of the plaintiff specifically made in the plaint, but the learned court below did not decide the said issue one way or the other and failed to exercise its discretion specially vested in it. This is not a proper way to deal with such a petition as it tends to make such petitions infructuous. It should have been decided on merit and if the plaint suffers from any illegality it could have been rejected and if the dispute was to be decided by any other forum as per any specific law, the plaint could have been returned to the plaintiff for being filed in the said forum, but it was clearly not proper for the learned court below to ignore the duty cast upon it under the provision of law specially when the suit was in its initial stages. 5. In the said circumstances, the impugned order is set aside and the matter is remanded to the learned court below to decide the matter afresh in accordance with law without being prejudiced by this order. 6. Accordingly, this civil revision is allowed with the aforesaid observation. ( S.N.Hussain,J.) Patna High Court, Patna Dated, 23rd April, 2008 Sunil/ N.A.F.R