Navaniti Prasad Singh, J.

1. Heard Shri S.S. Dwivedi, the learned Senior Counsel appearing for the defendants petitioners and Shri Sidheshwari Prasad Singh, learned Senior Counsel appearing on behalf of the plaintiffs-opposite parties.

2. The present application is directed against order dated 22.9.2005 passed by the learned Subordinate Judge I, Bettiah in Partition Suit No. 73 of 2004 by which he has rejected the defendants-petitioners application for rejection of plaint in terms of Order VII Rule 11 of Civil Procedure Code (In short "CPC").

3. In substance the defendants-petitioners claim is that the plaintiffs-opposite parties had earlier filed a Partition Suit as against the defendants-petitioners. In the said Partition Suit, the defendants-petitioners appeared and filed a detailed written statement, inter alia, taking the stand that the properties in question had already been partitioned earlier. There was nothing to partition. Thereafter, when the said suit was taken up for hearing, the plaintiffs did not contest and abandoned the suit. Now another suit for identical relief has been filed. It is submitted on behalf of the defendants -petitioners that in terms of Order IX Rules 8 and 9 of CPC, the fresh suit by plaintiffs-opposite parties was clearly barred for the same cause of action and in respect of the same properties as between the same parties. Accordingly, the fresh suit having been filed, the defendants-petitioners appeared, filed their written statement and also an application in terms of Order VII Rule 11 of CPC for rejecting the plaint as it disclosed no fresh cause of action and was barred in terms of Order IX Rules 8 and 9 of CPC. The plaintiffs opposite parties filed their rejoinder to the said application. The trial Court, after hearing the parties, rejected the application of the defendant-petitioners on the ground that in order to determine whether the plaint ought to be rejected in terms of Order VII Rule 11 of CPC. lie had to look only to the plaint. The question, as raised by the defendants-petitioners, involves investigation of facts and questions of law which could not be taken up at this stage. This is what has brought the defendants-petitioners to this Court.

4. Shri S.S. Dwivedi, in support of the application, has submitted firstly that the plaintiffs are playing fraud upon Court by suppressing material facts. The plaintiffs were duty bound to disclose the happenings of the earlier suit and partition and not having disclosed the same, they are not entitled to any relief and the plaint ought to be rejected. He relied on the principle of fraud vitiates all as established by series of judicial decisions including those as noticed in the case of S.P. Chengalvaraya Naidu V/s. Jagannath and Ors. Secondly, he submitted that there being an earlier partition, there being an earlier suit which was dismissed in terms of Order IX Rules 8 and 9 of CPC, clearly the present suit was barred and the plaint ought to have been rejected in terms of Order VII Rule 11(a) and (d) of CPC.

5. On the other hand, Shri Sidheshwari Prasad Singh, the learned Senior Counsel appearing for the plaintiffs opposite parties submitted that so far as question of fraud is concerned, it is a matter of fact which has to be established by evidence. There may be several defence available. He further submitted that in all the cases where the principle "fraud vitiates all" is applied, some benefit had accrued to the party by perpetuating fraud and on the principle of the said doctrine, that benefit was taken away whereas in the present case only a plaint had been filed. No benefit had yet accrued to the plaintiffs-opposite parties and, as such, the said principle was inapplicable at this stage of the proceeding. It was secondly contended that in order to decide whether or not to reject the plaint in terms of Order VII Rule 11 of CPC, the Court was competent only to look into the averments as made in the plaint and is precluded from