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.