( 1 ) THE petitioner has challenged the legality and validity of the order passed below Ex. 18 on 23-10-1991, by the learned Civil Judge (S. D.) Junagadh in special Civil Suit No. 1328 of 1986, by filing this revision application under section 115 of the Code of Civil procedure.

( 2 ) THE petitioner herein is the original defendant and the respondent herein is the original plaintiff who filed the aforesaid suit for breach of contract for the recovery of earnest money and instalments of Rs. 36,125/- from the petitioner, a statutory committee. It is inter alia contended by the petitioner that the petitioner-committee had let out the premises to its members. In response to the public advertisement published in the newspaper, the respondent had deposited the earnest money and instalments. In a public auction shop No. 74 in a category came to be allotted to the respondent. The said auction was cancelled and the amounts paid by the respondent in respect of the aforesaid shop was forfeited and reduction was made and the said shop was allotted to some other person by the petitioner committee.

( 3 ) THE respondent thereafter filed the aforesaid suit for recovery of the said amount together with interest against the petitioner. Without filing written statement, the petitioner submitted an application, Ex. 18 for rejection of the plaint under Order 7, Rule 11 (d) read, with Section 151 of the Code of Civil procedure. After hearing the parlies, the trial Court dismissed the application on 23-10-1991. Hence, the petitioner had challenged the legality and validity of the

( 4 ) IT is found from the impugned order thai request to reject the plaint was not accepted in the absence of written statement of the original defendant who is the petitioner herein. It is also observed in the impugned order that the defendant was given sufficient time fur filing written statement. However, it has not filed the written statement. Therefore, it was found by the trial Court question of, maintainability of the suit and rejection of plaint under Order 7, Rule 11 (d) cannot be considered at the stage. The trial Court relied upon the decision of the Bombay high Court (AIR 1986 Bom. 46 ). It is against this order that the petitioner has preferred this revision application.

( 5 ) IT is true that plaint can be rejected on any one of the grounds mentioned in order 7, Rule 11 of the Code of Civil procedure. However, in order to reject a plaint one or more grounds must exist. The contention of the petitioner in the application, Ex. 18 is that the suit is barred by the provisions of Section 58 of the Gujarat Agriculture Produce Market act, 1963 (the Act for short ). In the said application, it was staled that the suit was filed without notice and, there was bar of limitation, relying on the averments made in para 15 of the plaint.

( 6 ) IT is now submitted that the averements made in the plaint para 15 show that the suit is filed within the period of two months after the service of notice as required under Section 58 (2) of the Act. It is stated that notice is dated 20- 10-1986 under Section 58 (1) of the Act. The suit came to be filed on 30-10-1986 and, therefore, the suit is barred by provisions of Section 58 of the Act. In the implication Ex. 18, para 4, it was contended that statutory notice should be served first and the suit can be filed only after expiration of two months next after the Service of the statutory notice.

( 7 ) THERE is no dispute about the fact that summons was served on the petitioner-defendant on 1-12-1986 and the petitioner applied for adjournment for tiling written statement on five occasions till 15-3-1987 by giving applications in the trial Court at Exs. 7 to 11. The trial court has observed that the petitioner had failed to file the written statement despite giving sufficient opportunity for the same and has later on invited the court to exercise the power of the court under order 7, Rule 11 (d) of the Code of Civil procedur