1. The petitioner/defendant No.2 has filed this petition against the order dated 31.10.2012 whereby his application preferred under order 14 rule 5 CPC (Annexure P/7) and application under Order 6 rule 17 C.P.C. (Annexure P/8) were rejected by the Court below.

2. In a suit filed for declaration and permanent injunction the petitioner filed an application under Order 7 rule 11 CPC. This application was rejected by the Court below on 26.4.2012 (Annexure P/3). On 21.7.2011, the petitioner filed his written statement. He raised objections regarding maintainability of suit and non-availability of cause of action. He also raised objection on the ground of limitation. It is further contended that as per Order 2 rule 2 and as per section 34 of the Specific Relief Act, the suit is not maintainable. Written statement is filed as Annexure P/4. The trial Court, thereafter framed seven issues. Feeling dissatisfied and aggrieved by the issues so framed, petitioner preferred an application under Order 14 rule 5 CPC. The trial Court by the impugned Order dated 31.10.2012 rejected the said application.

3. Shri D.D. Bansal, learned counsel for the petitioner, criticized this Order and contended that the trial Court has framed the issues only on the basis of pleadings of the plaintiff and has not taken care of the specific objections raised in written statement by the petitioner/defendant No.2. He submits that the Court below has erred in rejecting his applications, aforesaid. Another grievance of the petitioner against the impugned Order is that his application Annexure P/8 preferred under Order 6 rule 17 CPC is erroneously rejected. It is contended that by this application, petitioner intended to raise pure legal ground of limitation and therefore, Court below should have allowed this application.

4. Per Contra, Shri N.K. Gupta, learned counsel for the respondent No.1/plaintiff supported the Order passed by the Court below. He submits that there is no legal infirmity nor their exists any procedural impropriety which warrants interference by this Court under Article 227 of the Constitution. Shri N.K. Gupta, learned counsel for the other side submits that application under Order 6 rule 17 was filed after framing of the issues and therefore, unless due diligence is established by the petitioner, application could not have been allowed. Court below has not committed any error in rejecting the same.

5. No other point is raised by the learned counsel for the parties.

6. I have heard learned counsel for the parties and perused the record.

7. A plain reading of application preferred under Order 14 rule 5 CPC shows that the petitioner has referred relevant paragraphs of his written statement and contended that in view of those pleadings, certain issues are required to be framed. For example, in paras 2 and 3 of the said application, the petitioner has raised objection about maintainability of suit in view of section 34 of Specific Relief Act and on account of limitation. Petitioner has also relied on section 401 of Municipal Corporation Act to contend that suit is not maintainable.

8. The Court below in the impugned Order opined that the issues so framed are based on rival pleadings of the parties and the issues already framed do not require any amendment or addition. The Court below has framed seven issues. The petitioner by placing specific reliance on averments of written statements stated that certain issues are required to be framed. The Court below has not applied its mind as to whether the said objections needs to be reduced in writing in framing of a relevant issue. In the further opinion of this Court, even if an application preferred by the petitioner under Order 7 rule 11 CPC is rejected earlier, that cannot be a ground for not consider the question of framing issues. It is relevant to remember that while deciding the application under Order 7 rule 11 CPC, only plaint averments are seen and stand taken in the written statement is not lo