1. The instant miscellaneous appeal filed under Order 43 Rule 1 (U) of the Code of Civil Procedure, 1908 (for short 'the C.P.C.') has been preferred by the defendant against the remand order passed by the Additional District Judge, Pendra Road, Dist. Bilaspur in Misc. Civil Appeal No. 06 of 2009.

2. Facts of the case in a nutshell giving rise to this appeal are as under :

(i) The respondent/plaintiff filed a suit seeking relief of permanent injunction against the appellant, inter alia on the ground, the plaintiff and defendant have entered into agreement of sale with regard to suit land bearing Kh.No.678/17 area 0.60 acres situated at village Teekakala, Tahsil Pendra Road, Dist. Bilaspur, @ Rs.10/- per square feet. The plaintiff has paid Rs.20,000/- as earnest money on 26.08.2000.

(ii) The appellant/defendant handed over the possession of the suit property to the plaintiff. As per the terms of the agreement, the sale deed has to be executed by the defendant after getting the suit land demarcated. However, the defendant did not get the land demarcated and the plaintiff came to know that the defendant is trying to sell the suit land to some one else and also trying to dispossess him.

(iii) The trial Court, without registering the case, vide order dated 15.01.2009, dismissed the suit holding it as not maintainable for want of claiming relief of specific performance of contract. The above order was assailed by the plaintiff by filing misc. civil appeal before, the Court below.

(iv) The Court below allowed the plaintiff's appeal, holding the suit as not barred under Section 11 (d) of the C.P.C. and is maintainable and remanded the matter for its decision on merits. Hence, this appeal.

3. Shri M.D. Sharma, learned counsel appearing for the appellant, assails the judgment of the first appellate Court for the reasons:

Section 53-A of the Transfer of Property Act, 1882 (for short 'the Act of 1882') is ordinarily to be used as a defence and not as a weapon of attack and right is available only to the defendant to protect his possession.

The plaintiff vendee having efficacious remedy by way of suit for specific performance, suit for permanent injunction, filed was not maintainable.

For the above, he placed reliance upon the judgment of the Supreme Court in the cases of Maneklal Vs. H.J. Ginwalla, AIR 1950 SC 1 and the judgment of Privy Council in the case of Probodh Kumar Das Vs. Dantmara Tea Co. Ltd., AIR 1940 PC 1.

4. On the other hand, Shri Saleem Qazi, learned counsel appearing for the respondent supported the order impugned and submitted: the plaintiff, for the purpose of immediate protection of his right, can file a suit for permanent injunction even without filing a suit for specific performance of the contract.

5. I have heard learned counsel for the parties and perused the paper book.

6. The real object of Order 7 Rule 11 is to keep out of the Court irresponsible law suits. Order 7 Rule 11 of the C.P.C. lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised the trial court can exercise the power at any stage of the suit, that is, before registering the plaint or after issuing summons to the defendant any at any time before the conclusion of the trial - and also does not say in express terms about the filing of a written statement: for the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the C.P.C., the averments in the plaint are germane (please see Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 SCC137).

7. Section 34 of the Specific Relief Act prohibits a suit for mere declaration without consequential relief. Section 53-A of the Act of 1882 is ordinarily to be used as a defence and not as a weapon of attack. The Privy Council, in the case of Probodh Kumar Da