JUDGMENT :

A.S. SUPEHIA, J.

1. ADMIT. Learned advocate Mr. Vakil, waives service of notice of admission on behalf of the respondent.

2. The present First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, (for short “the CPC”) emanates from the judgment, order and decree dated 29.09.2022 passed below Exh.30 by the City Civil Court, Ahmedabad, in Civil Suit No. 1084 of 2022, whereby the application filed below Exh.30 under Order VII Rule 11 of the CPC, by the defendant has been allowed and the plaint is ordered to be rejected.

3. At the outset, learned advocate Mr.Sudhanshu Jha, appearing for the original plaintiff-appellant has submitted that the impugned judgment, order and decree passed by the Court below rejecting the plaint is contrary to law enunciated by the Apex Court in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamant Others by judgment dated 09.08.2021 passed in Civil Appeal No. 4665 of 2021 and SLP (C) No. 3899 of 2021.

3.1 Learned advocate Mr. Sudhanshu Jha, has further invited the attention of this Court to the averments made in the plaint, more particularly the cause of action stated in paragraph No. 9 and the prayer clause and has submitted that the plaint could not have been rejected and the same discloses the valid cause of action and the suit is also within the period of limitation.

3.2 It is submitted that the Court below has in fact considered the written arguments filed by the defendant below Exh.38, which is impermissible and hence, the impugned order is required to be quashed and set aside.

3.3 Learned advocate Mr. Jha has further submitted that the prayers made in the plaint suggest that the plaintiff is only seeking demarcation of the suit property, which has been granted to him through a Will and when he came to know that on his share of the property, an unauthorized construction has been undertaken by the defendant, he had instituted the suit seeking declaration of the demarcation of the suit property i.e. out of 740 sq. mtrs. the plaintiff would be entitled to share of 555 sq. mtrs. and the defendant is entitled to 185 sq. mtrs. He has submitted that it is asserted in the plaint that unauthorized construction is being carried out by the defendant in his share of the suit property and hence, such declaration is sought for. Thus, it is submitted that it was not open for the Trial Court to examine the defence of the defendant, while rejecting the plaint and hence, the impugned judgment and order may be set aside and the suit may be ordered to be restored.

4. Per contra, learned Advocate Mr. Vakil, with learned advocate Mr. Dhiren Shah, appearing for learned advocate Mr. Pranay Shah for the respondent has submitted that the impugned order does not require any interference and the same is appropriately passed. Learned advocate Mr. Vakil has submitted that in fact, false and incorrect statement has been made in the plaint, more particularly in paragraph No. 6, wherein the plaintiff has asserted that no development permission has been obtained before undertaking the construction, however, it is submitted that in fact, the plaintiff is the signatory to the application made before the Corporation for seeking development permission. In support of his submissions, he has placed reliance on the development permission which is supplied to this Court. It is submitted that in fact, the plaint does not disclose any cause of action and hence, the impugned judgment and decree, which has been passed after placing reliance on the judgment of the Apex Court, does not require any interference. Thus, it is submitted that the impugned judgment and decree may not be disturbed.

4.1 In support of his submissions, learned advocate Mr. Vakil has placed reliance on the judgment of the Apex Court in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (GAJRA) (D) through LRs. and Others, (2020) 7 SCC 366 and the judgment of the Coordinate Bench dated 10.04.2019 passed in First Appeal No. 1329 of 2019.

4.2 Lea