ORDER :

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 15.03.2022 passed by the learned 5th Additional Civil Judge (J.D.), Vadodara, upon framing of issue as under :

“(1) Whether the plaint of the plaintiffs is hit by provisions of Order 7 Rule 11 of Civil Procedure Code?

(2) What Order?”

2. Learned Counsel Mr. Rushabh H. Shah with learned advocate Mr. Rohan Shah for the petitioners has urged that wherever and whenever there is pure question of law then only, the learned Civil Court can frame the preliminary issue.

2.1. In support of his arguments, learned advocate for the petitioners has placed reliance upon the judgment of Hon’ble Supreme Court rendered in the case of NUSLI NEVILLE WADIA v. IVORY PROPERTIES AND OTHERS reported in (2020) 6 Supreme Court Cases 557.

2.2. Learned advocate for the petitioners has also placed reliance upon the judgment of the Hon’ble Supreme Court rendered in the case of Srihari Hanumandas Totala v. Hemant Vithal Kamat reported in 2021 (9) SCC 99 and equivalent citation : 2021 (0) AIJEL-SC 67577 and in the case of Kamgar Swa Sadan Cooperative Housing Society Ltd. v. Vijaykumar Vitthalrao Sarvade reported in 2022 (0) AIJEL-SC 68352.

2.3. Learned advocate for the petitioners has drawn the attention of this Court at Order 7 Rule 11 of the Code of Civil Procedure.

2.4. Learned advocate for the petitioners has also drawn the attention of this Court at the grounds, which are narrated in the petition from A to K.

3. Pursuant to the order dated 15.03.2022, wherein the learned Civil Judge has stated and narrated in the order below Exh.1 that on 14.03.2022, learned advocate Mr. B.V. Goswami has remained present before this Court and the learned advocate was heard with regard to the plaint, cause of action and relief claimed.

4. Learned 5th Additional Civil Judge (J.D.), Vadodara has also observed that pursuant to the averments made in the plaint, cause of action, relief claimed and documents submitted with D-list and keeping in mind provisions of Code of Civil Procedure, 1908, The Indian Succession Act, 1925 and The Limitation Act, 1963, the learned Civil Court thought it fit to frame the preliminary issue and the Civil Court has also perused the principles laid down in the case of T. Arivandanam v. T.V. Satyapal & Others reported in AIR 1977 0 (SC) 2421. Upon all such basis, the court has concluded that the preliminary issue with regard to Order 7 Rule 11 of the Code of Civil Procedure is required to be framed.

5. Learned Counsel has also placed reliance upon the judgments mainly on the issue of limitation Act as well as the issue of res judicata, wherein the judgments are of the Hon’ble Supreme court, it is binding to this court and there is no question for the same, but at the same time, the learned Civil judge has not observed that there is only the question of Limitation Act and there is only question of res judicata. On the contrary, ex facie, the learned Civil Judge has observed that pursuant to the pleadings, there are many factors including the cause of action, The Limitation Act, 1963, Indian Succession Act, 1925 and on all such grounds, prima facie, learned Civil Court has opined that there is requirement of framing of issue under Order 7 Rule 11 of the Code of Civil Procedure.

6. It is also undisputed fact that the Court has also heard concerned counsel for the suit and also considered the averments made in the plaint.

7. Before traveling to the exercise of the jurisdiction under Article 227 of the Constitution of India, it would be just and proper to refer land mark decisions of the Hon’ble Supreme Court of India, in the case of (i) Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequ