This petition under Article 227 of the Constitution of India is filed by the petitioner, Sri Nimai Kar, challenging the order dated 16.12.2009 passed by the learned Civil Judge, Senior Division, North Tripura, Kailashahar in T. S. No. 39 of 2009 whereby the application under Order 7, Rule 10CPC filed by the petitioner as defendant No. 1 in the said suit for returning the plaint has been rejected.

2. In the instant petition, notices to the respondents was issued on 11.1.2010. On receipt of the notice, the respondent No. 1 has entered appearance through his learned counsel Mr. S. Bhattacharjee assisting Mr. S. M. Chakraborty, learned senior counsel. None appears for and on behalf of the respondent No. 2, though notice was sent to the respondent No.2 by registered post with A. D. on 2.3.2010. Hence, in view of the provision of Order 5, Rule 9(5) CPC, notice is deemed to have been served upon the respondent No. 2. However, as agreed to by the learned counsel for the parties, this petition is taken up for final disposal at this stage including the question of maintainability.

3. Heard Mr. D. K. Biswas, learned counsel appearing for the defendant No. 1 -petitioner and Mr. S. M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the plaintiff-respondent No. 1.

4. Today, when the matter is taken up for admission hearing, Mr. Chakraborty, learned senior counsel, at the very outset, raised the question of maintainability of the instant revision petition on the ground that whether an order of the Civil Court can be challenged invoking extraordinary jurisdiction of this Court under Article 227 of the Constitution when the said order can be assailed under Section 115 of the CPC.

5. The brief facts needed to be discussed for disposal of the instant revision petition are as follows:

The petitioner, (hereinafter referred to as defendant No. 1) and the respondent No. 1, (hereinafter referred to as plaintiff) are civil contractors. The respondent No.2-Hindustan Steel Works Construction Ltd. (in short, HSCL) invited tenders issuing four Notices Inviting Tenders for execution of village roads under the PMGSY Scheme at Kailashahar Sub-Division, North Tripura. Since the plaintiff has the ability and experience for the said works, the defendant No. 1 asked the plaintiff to execute the said works in a joint venture with the defendant No. 1 on the basis of sub­contract and as agreed to, the defendant No. 1 dropped the tenders in pursuance of the said NIT and ultimately got the work orders in his favour for the aforesaid four tenders. So on mutual understanding, they made a joint declaration in the Letter head (Pad) of the defendant No. 1 on 10.9.2007, but as it has no force of agreement, the plaintiff requested the defendant No.1 to execute a formal agreement and on the same date, an unregistered agreement in a non-judicial stamp paper of Rs.10/- was executed between the plaintiff and the defendant No. 1 in presence of the witnesses. The condition No.4 of the said agreement was that the bank guarantee of Rs. 1,67,01,275.00 given by the first party i.e. the defendant No.1 shall be recovered from-the bill amount which shall be adjusted against the profit margin of Rs.3,30,00,000,00, if the amount of bank guarantee is recovered, then 10% after balance amount shall be recovered from the R.A. Bill till receipt of profit of Rs .3,30,00,000,00, Condition No. 5 was that the second party i.e. the plaintiff would be responsible for the said works to be completed as per specification within the stipulated time and he also would be responsible thereafter for five years after completion of the aforesaid contract works and if any loss or damage is sustained, then it shall be borne by the plaintiff and the Condition No.6 specified that the declaration made earlier by the plaintiff and the defendant No.1 would be treated as cancelled and withdrawn. Thereafter, the defendant No. 1 executed four deeds of general