JUDGMENT :

BISWANATH RATH, J.

1. This present writ petition arises out of an order dated 29-4-2009 passed by the Civil Judge (Senior Division), Puri in C.S. No. 38 of 2008 as at Annexure-9 thereby allowing an application under Order 7, Rule 11 of CPC filed at the instance of defendant No. 1 - Bank for rejecting the plaint.

2. The short fact involved in the case is that the present petitioner as plaintiff filed the suit bearing C.S. No. 38 of 2008 as against the Bank and a private party seeking the following reliefs:-

"(A) Let the D. 1 or any one of its behalf be permanently restrained from coming upon the suit land and disturb possession of the plaintiff in any manner whatsoever.

(B) Let, a decree be passed declaring D. 2 to have no right, title, interest nor possession in the suit property.

(C) Let a decree be passed declaring any property including 'A' schedule property in part and parcel of the ancestral property of late Bhikari.

(D) Let, the possession of the plaintiff in the suit land be confirmed and the property mentioned in the notice affixed on behalf of D. 1 be declared to have no connection with subject matter of the suit.

(E) Let, the cost of the suit be decreed.

(F) Let, any other relief considered available to the plaintiff be decreed."

The suit was based on the following pleadings alleging fraud played by defendant No. 2.

"That, it is further seen that the D. 2 and the said Uma, being the eldest male members were regularly and in discriminatingly dealing with ancestral property and funds without giving vent to other members namely the plaintiff, the youngest male member and their mother Pankajini. It may be submitted here that those two senior members joint their soiled hands to deal with the property illegally and without the knowledge of their members and to make illegal gain out of the joint family property to bring to the light the illegal and fraudulent intention of the D. 2 here is a glaring instance that although the joint family has in no way been benefited by standing a gurantor to a loanee from D. 1 and entangling the joint property for nothing more than the intention of D. 2 he has practised fraud upon both the D. 1 and by depositing false and fraudulent documents in the office of D. 1 and by falsely implicating this poor plaintiff for the notice so affixed by D. 1 has no bearing to the land owned and possessed by the plaintiff as his residential house with his family members. However, the plaintiff has been in peaceful and exclusive possession having a residential house thereon what he got by way of registered deed of partition to which the D. 2 has put his signature as a share holder and a party to the said registration."

3. After filing of the written statement, the defendant No. 1 filed an application under Order 7, Rule 11, CPC praying therein for rejection of the plaint taking resort to the provisions contained in The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 hereinafter (in short 'SARFAESI Act, 2002') particularly taking resort to the bar of the suit under the Act.

4. Considering the submissions made by the parties, the trial Court by the impugned order allowed the application under Order 7, Rule 11, CPC seeking rejection of the plaint and thereby rejected the plaint being barred under Section 34 of the SARFAESI Act, 2002.

5. Challenging the impugned order, the learned counsel for the petitioner submits that in view of the clear allegation of fraud and absurdity against the defendant No. 2, the suit is very much maintainable and this nature of suites not coming under the prohibition created under Section 34 of SARFAESI Act, 2002. Relying upon a decision in the case in the between Jyosna Rani Padhi and others v. Smt. Susila Padhi and others as reported in 2008 (2) OLR 243 : AIR 2008 (NOC) 2244 (Ori), learned counsel for the petitioner contended that in view of the involvement of the question in the suit, such matters could not have been decided by way