The appellate court must remand a case for trial after reversing a dismissal under Order VII Rule 11, without assessing merits.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. It is observed from the record that the appellant No. 1, namely, Deb Kumar Banerjee who is defendant No. 1 in the suit has already been substituted by order dated 07.08.2024. The name of the legal representative of the appellant No. 1 has not been incorporated in the memo of appeal. Office is directed to carry out the direction with regard to insertion of the name of legal representative of the appellant No. 1 in terms of order dated 07.08.2024. The details of the legal representative of the appellant No. 1 are as follows : -

Sudip Banerjee, aged about 54 years, Son of Late Deb Kumar Banerjee, Resident of 3, B.G. Road, Haora (M. Corp.), P.O. & P.S. Haora, District Howrah (West Bengal), Pin Code –711103.

2. Heard the learned counsel appearing on behalf of the parties.

3. This second appeal has been filed against the judgment and decree dated 30.05.2018 and 13.06.2018 respectively passed by the learned District Judge-II, Giridih in Civil Appeal No. 24 of 2013 reversing and setting aside the order and decree dated 16.03.2013 and 04.04.2013 respectively passed by the learned Civil Judge (Sr. Division)-III, Giridih in Title Suit No. 61 of 2009.

4. The substantial question of law which was framed yesterday i.e.15.01.2025 is quoted as under: -

“Whether the first appellate court after arriving at a conclusion that the suit was wrongly dismissed by referring to the Order VII Rule 11 of CPC ought to have remanded the matter to the learned trial court for decision on the various issues framed by the court and whether the learned courts could have entered into the merits of the matter based on the case of the parties while considering the matter regarding rejection of plaint under Order VII Rule 11 of C.P.C?”

Arguments of the appellants

5. The learned senior counsel for the appellants has submitted that the suit was dismissed by the learned trial court upon a petition filed by the defendants under Order VII Rule 11 of CPC by holding that the suit was barred by res-judicata. He submits that the learned appellate court has allowed the appeal by holding that the learned trial court wrongly decided that the suit was barred by the principles of res-judicata. The learned senior counsel submits that upon having held as aforesaid that the suit was not barred by res-judicata at the stage of Order VII Rule 11 of the CPC, the learned appellate court ought to have remanded the matter to the trial court for deciding the issues which were already framed by the learned trial court.

6. It has been also argued by the learned senior counsel for the appellants by referring to the judgment passed by the Hon’ble Supreme Court reported in 2023 Live Law SC 1033 that no amount of evidence or merit of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 of the CPC. The learned senior counsel for the appellants has also submitted that the trial court as well as the appellate court have travelled beyond the scope of Order VII Rule 11 of the CPC. Although the trial court rejected the plaint and the appellate court set aside the order of the trial court, but the appellate court has also considered the merit of the matter while holding that the plaint was wrongly rejected. He submits that accordingly observation may be made that the suit be decided without being prejudiced by any of the observations/ findings of the trial court as well as by the appellate Court.

7. The learned senior counsel has also submitted that at the time of filing the petition seeking rejection of plaint the suit was already in advance stage, inasmuch as, the issues were already framed and the evidence had commenced. He has also submitted that the question of law be decided and the matter be remitted to the learned trial court to decide the issues in accordance with law. He has also submitted that some time frame may be granted, inasmuch as, the title suit is of the year 2009.

Arguments of the respondents

8. Learned couns