ORDER :

1. Present applicant, who is the original defendant No.3 before the Court below in Regular Civil Suit No. 72 of 1997, has challenged the order dated 24.7.2019 passed below Exh. 292 by the learned 3rd Additional Senior Civil Judge, Gandhinagar in Regular Civil Suit No. 72 of 1997.

2. The short facts leading to the present case are as under:-

3. The original plaintiffs who are the respondent No.1 to 4 herein filed Regular Civil Suit No. 72 of 1997 before the Court of learned 3rd Additional Sr. Civil Judge, Gandhinagar against the present applicant and respondent No. 4 to 15. Initially the said suit was filed only against three defendants namely defendant No.1 - Anilbhai S.Gandhi 2. Amijara Farms Pvt. Ltd. and present applicant, subsequently, other defendants were added by the applicants. In the suit filed by the original plaintiffs, prayer was made for setting aside the consent decree passed in Regular Civil Suit No. 89 of 1996. According to the plaintiffs in the suit, consent decree was obtained by the original defendant No.3 illegally and by fraud as well as misrepresentation. In the title of the suit, the said suit was for declaration and mandatory injunction. Subsequently in the suit claim was enhanced to Rs.1260/. The said suit was in respect of the land bearing block No. 112 (paiki) admeasuring 26 acres and 2 Gunthas which was hereinafter referred to as “the suit land”. The said suit was filed by the original plaintiffs to set aside the consent decree passed by the learned Civil Judge (JD), Gandhinagar in Regular Civil Suit No. 89 of 1996. The parties to Regular Civil Suit No. 89 of 1996 were impleaded as the defendants in Regular Civil Suit No. 72 of 1997. Present applicant preferred an application vide Exh. 292 under Order VII Rule 11 of CPC contending that the suit is barred under Order XXIII Rule 3A of the CPC. After hearing the parties, learned trial Judge was pleased to reject the said application [ Exh. 292] by the impugned judgement and order dated 24.7.2019. Present applicant, being aggrieved by the judgement and order dated 24th July, 2019, has approached this Court, challenging the legality and validity of the said judgement and order.

4. Heard Mr. Mehul Shah, learned Sr. Counsel appearing for Mr. A.A.Purohit, learned advocate for the applicant. As per cause title, however, notice was duly served by direct service to respondent No. 1,2,4,5.1,5.2,5.3,5.4,5.5,5.6,6, 15, nobody was appeared to contest this application and Mr. J.C.Vyas, learned advocate is appearing for the respondent Nos. 7 to 14.

5. Learned advocate appearing for the applicant has submitted in his arguments that in the plaint, in para 6 it was clearly averred that the suit was filed to set aside the consent decree passed by the Court of learned Civil Judge (J.D) Gandhinagar in Regular Civil Suit No. 89 of 1996 as it was obtained by the original defendants No.1 to 3 by fraud and misrepresentation. It was cleared that reliefs, which was sought, were consequential to the principal relief that the consent decree passed in Regular Civil Suit No. 89 of 1996 was to be set aside. That, the Court below has committed an error in considering the prayer clause in Para 8 of the plaint. It was further submitted that the suit of the plaintiffs was barred under Order XXIII Rule 3A of the CPC, which trial Court has not considered in a proper way. It was further submitted that the suit was not maintainable to set aside the consent decree passed in another suit and if such suit is filed to set aside the consent decree passed in another suit, it shall be rejected under Order VII Rule 11(1) of CPC. That, Court below has failed to consider the provisions contained under Order VII Rule 11 as well as Order XXIII Rule 9 of the CPC. That, in the aforesaid provisions, legislature has used word “shall” and therefore, trial Court was bound to reject the plaint as prayed by the defendant No.3. That, the observations of the trial Court while passing the order that principal