A plaint can only be rejected under Order 7 Rule 11(d) if it fails to disclose a cause of action or is barred by law, without regard to evidence or defenses raised in the written statement.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 16.02.2023 passed by learned Civil Judge (Senior Division)-I, Khunti in O.S. No.10 of 2020 whereby the learned Court has rejected the application under Order 7 Rule 11 (a) and (d) read with Section 151 of the CPC filed by the defendants/petitioners.

3. Mr. Sudhir Kumar Sharma, learned counsel appearing for the defendants/petitioners submits that one Mahadeo Halwai father of Plaintiff/Respondent No.1 instituted Partition Suit against Devendra Sahu (now deceased) and three others being Partition Suit No.53/13 of 1961-62 in the Court of Sub-Judge, Ranchi for partition of land of Khata No.48 and 84 of village-Khunti Tola, Khata No.103, 231 and 23 of village – Khunti, District Ranchi for the relief that a preliminary decree for partition be passed and a separate takhta of 8/- of the plaintiff by appointing a pleader commissioner be carved out from the proper and after making the decree final the plaintiff be put separate possession of the same. He submits that the suit was decided by judgment dated 27.09.1962 holding that the plaintiff is entitled for partition over Khata No.48 of Khunti Tola and 103 and 231 of village – Khunti. He further submits that the Pleader Commissioner was appointed who submitted his report on20.05.2008 and vide order dated 29.01.2008 final decree was prepared by learned Sub-Judge – I, Khunti in Partition Suit No.53/13 of 1961-62. He submits that the father of the defendant No.24/respondent No.2 herein instituted Execution Case No.5/2009 for execution of final decree dated 29.01.2010 passed by Sub Judge-I, Khunti. He further submits that in the year 2019 at the execution stage, the petition was filed for correcting the decree to the effect that Khata No.23 was made part of the final decree in light of Pleader Commissioner’s report. He submits that in the preliminary decree Khata No.23 was not the subject matter, there was no decree to that and in the Pleader Commissioner has wrongly entered Khata No.23 in the report and in view of that the petitioner was filed for correction and on the basis of the report the final decree was prepared and in view of that the petition was filed in the year 2019 to exclude Khata No.23 from the final decree which has been allowed by the order dated 19^th February, 2020, thereafter, the present suit being Original Suit No.10 of 2020 was instituted on 18.09.2020. Mr. Sharma, learned counsel appearing for the petitioners further submits that on receiving the summon, the petitioners/defendants appeared and filed the written statement as well as the petition under Order 7 Rule 11(a) and (d) stating that the suit is barred by res-judicata and in view of that the plaint may kindly be rejected. He submits that the learned Court has erroneously decided the said and rejected the said petition and in view of that the said order may kindly be set aside. He submits that in view of the admitted facts, the learned Court has wrongly passed the said order and according to him the said order is not in accordance with law and the same may kindly be set aside.

4. Mr. Vishal Kumar Rai, learned counsel appearing for the opposite parties opposes the prayer and submits that the learned Court has rightly held at this stage only the pleadings can be looked into and appreciat