P.G. Agarwal, J.

1. Heard Mr. N. Choudhury, the learned Counsel for the Petitioner and Mr. K. Agarwal, the learned Counsel for the Respondents.

2. The Petitioner instituted Title Suit No. 308/2004 before the Civil Judge (Sr. Div.) No. 2, Kamrup, Guwahati for a declaration that the Defendants are liable to install and commission a defect free and proper machine at the premises of the Petitioner Eye Hospital and the Defendants are liable to pay damages for failure to do so.

3. Summons in the above suit was served on the Respondent and thereafter Respondent No. 1 M/s. Roche Diagnostics Asia Pacific Pvt. Ltd. filed an application under Order VII, Rule 11, Code of Civil Procedure, for rejection of the plaint so far it relates to Defendant No. 3 and Respondent No. 1 before us. The Defendant No. 3 also filed and application on 7.10.2004 before the trial Court praying for appropriate order keeping in abeyance the filing of written statement by the Defendant No. 3 till disposal of the application under Order 7, Rule 11, Code of Civil Procedure. The matter was heard by the trial Court and thereafter vide impugned order dated 19.10.2004, the trial Court relying on a decision of the Apex