The duty of the trial court to decide the application for amendment before deciding the applications under Order 7 Rule 11 CPC.

As per Hon 'ble Shri Dhirendra Mishra, J. :-

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') is directed against the order dated 25.9.2009 passed in Civil Suit No.5A/2009 whereby the learned 8th Additional District Judge, Bilaspur allowing two separate applications, one preferred by respondent No.2 and another preferred by respondents No.3 to 5, under Order 7 Rule 11 of CPC has dismissed the suit of the appellants.

2. The parties to this appeal shall be referred hereinafter as per their status before the trial court.

3. Briefly stated, facts of the case are that on 17.3.2008 the plaintiffs filed a civil suit and prayed for issuance of perpetual Injunction against the defendants No.2 to 5 that they should not create any hindrance either personally or with the help of others in obtaining possession by the plaintiffs from the defendant No.1 and further, they be restrained from transferring the suit land in favour of any other person. Defendant No.1 filed written statement on 23.4.2008, whereas defendants No.3 to 5 filed their written statement on 18.6.2008. During the pendency of the suit, on 22.12.2008 the plaintiffs filed an application (I.A. No.9) under Order 6 Rule 17 read with Section 151 of CPC and proposed amendments in the relief clause that the decree dated 24.5.2008 passed in Civil Suit No.I-A/07, its subsequent amendment on 18.6.2008 and other consequential orders are void as the same has been procured by illegal means and the same is not binding on the plaintiffs. The defendants have already submitted their reply to the amendment application. Thereafter, defendant No.2 & defendants No.3 to 5 have filed two separate applications under Order 7 Rule 11 of CPC for dismissal of the suit on 26.8.2009 & 4.9.2009 respectively. These applications have been allowed by the trial court vide impugned order dated 25.9.2009 and the suit has been dismissed.

4. Mr. Ali Asgar, learned counsel appearing for the plaintiffs submits that the impugned order has been passed without deciding the application for amendment in the plaint (I.A No.9) which was filed on 22.12.2008. By the aforesaid application the plaintiffs have impugned the collusive decree obtained by the defendant No.2 against defendants No.3 to 5 on 8.5.2008 and the plaintiffs have also prayed for decree of declaration and possession. Since the suit was filed on 17.3.2008 and the collusive decree was obtained later on, the plaintiffs' application for amendment (I.A No.9) was based on the subsequent events. The plaintiffs' earlier applications for amendment of similar nature were dismissed as withdrawn vide order dated 17.11.2008 with liberty to file detailed application for amendment. The defendants have already filed reply to LA. No.9, however, the matter was adjourned for five times, between 18.3.2009 to 16.6.2009, as the Court was without Presiding Officer.

Suit was transferred to the Court of learned 8th Additional District Judge, Bilaspur on 27.6.2009. The plaintiffs by way of application dated 10.7.2009 filed under Section 151 of the ere brought to the notice of the trial Court that the plaintiffs have already moved an application under Section 24 of the CPC for transfer of the case pending adjudication and till that application is decided, proceedings in the case be stayed. The trial Court vide order dated 17.7.2009 observed that if the plaintiffs file any document or affidavit in support of this application, then only the prayer may be considered. The plaintiffs filed copy of the application filed under Section 24 of the CPC along with an affidavit, however, the prayer was rejected vide order dated 4.8.2009 with an observation that from the copy of application it is not clear whether the same has been filed in the Court of learned District Judge or not. It has been further observed that since the matter is not being finally decided and only at the interim stage, staying the proceedings would not be appropriate. The plain