The main legal point established in the judgment is the procedural application of Order XIV Rule 5 of the Code of Civil Procedure in relation to Order VII Rule 11 of CPC and the bar under Section 11 of the Code of Civil Procedure.

JUDGMENT :

The petitioners before this Court are the defendants in a Suit, which was preferred by the respondents/plaintiffs, being Suit No. 160 of 2012, Mr. Omkar and another Vs. Shyam Lal and others. The principal relief in the Suit, was in relation to the subject matter of the property as described in para 1 of the plaint, it was for the grant of a decree of permanent injunction, as against the present defendants i.e. the petitioners herein.

2. The Suit was objected and the defendants petitioners had filed a written statement on 22.02.2013. In the written statement thus filed, the major issue of concern for the present writ petition, would be the pleadings as raised in para 10 of the written statement, which is extracted hereunder in its entirety.

**10- ;g fd okn i= ds in la- 10 ds leLr dFku dkYifud Hkzked ,oa vlR; gksus ds dkj.k dFkuksa dks vLohdkjrs gq, dBksj izfrokn fd;k tkrk gS oknh i{k dk izfroknhx.k ds fo:} izLrqr fu;kstu dk okn gsrqd dHkh Hkh vFkok fdlh izdkj vkt fnu rd mRiUu ugha gqvk gSA okn gsrqd ds vHkko esa oknh i{k dk izLrqr okn O;ogkj izfdz;k lafgrk 1908 ds vkns'k 7 fu;e 11 ds vkyksd esa lO;; [kf.Mr fd;s tkus ;ksX; gS **rFkk oknhx.k dk okn jsltwfMdsVk ds fl}kar ls Hkh ckf/kr gSA*^ as it was amended later.

3. After permission of the amendment, as made by the learned trial Court, vide its order dated 16.01.2019, an application was filed by the defendants petitioners, invoking the provisions contained under Order XIV Rule 5 of the Code of Civil Procedure, praying for formulation of an additional issue, for the purposes of facilitating the decision to be rendered in the said Suit. The said application for formulation of an additional issue, as prayed for by the present defendants i.e. the petitioners herein, was rejected by the learned trial Court on 01.02.2019, which later on stood affirmed by the judgment dated 25.07.2019, as rendered in Civil Revision No. 2 of 2019, Roop Raj and others Vs. Onkar and Another, hence the writ petition.

4. The learned counsel for the petitioners submits that in view of the language used under Order XIV Rules 3 & 4 to be read with Rule 5, particularly, of the CPC, a party to the proceedings can add, amend or modify an issue at any stage of the proceedings. There cannot be any doubt about the said provision, that striking or amendment of the issues could be at any stage of the proceedings before the Court renders the final judgment, but then the issue herein would be as to whether the insertion of an issue, could be by way of resort to under Order XIV Rule 5, by way of formulation of an issue in relation to Order VII Rule 11 of CPC and that too, when it was chosen to be filed after the amendment was being permitted to be carried in the written statement by the order dated 16.01.2019.

5. The learned Senior Counsel appearing for the plaintiffs /respondents submits, that the incorporation of the issue sought to be incorporated under Order XIV Rule 5, though is permissible at any stage, but he submits that the additional issue, in relation to Order VII Rule 11 of CPC cannot be permitted by invoking Order XIV Rule 5 of CPC; because it has had to be decided as a principal issue by the trial Court, before venturing to decide the Suit itself on its own merit.

6. There cannot be any dispute on that issue and the logic behind it is, that the issue under Order VII Rule 11 of CPC, since it goes to the very root cause as to whether the suit is maintainable or not instead of proceedings to decide the Suit itself on merits, the Court should first venture to decide the issue under Order VII Rule 11 of CPC before stepping into decide any other issues involved in the suit.

7. It is not in dispute in view of the pleadings raised in para 10 of the written statement, that the plea of Order VII Rule 11 of CPC was the principal plea incorporated in the written statement in its para 10. But in the form in which the pleading was raised it was raised, in relation to Order VII Rule 11, it was never attempted to be