JUDGMENT :

DEBANGSU BASAK, J.

1. A defendant in a suit for declaration, injunction and cancellation of title deed has assailed the order No. 35 dated October 1, 2024 passed by the learned Civil Judge Senior Division at Jalpaiguri in Title Suit No. 155 of 2019.

2. For the sake of convenience parties herein are referred to as ‘plaintiff’ and ‘defendant’ in the manner as they are appearing in the title suit.

3. Learned advocate appearing for the defendant has submitted that, the defendant filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 stating that, the plaint filed by the plaintiffs did not disclose any cause of action. He has referred to the allegations made in the plaint. He has also referred to the contentions of the defendant in the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. He has pointed out that, the application of the defendant was filed on January 13, 2020. He has also pointed out that, the plaintiffs had filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 on January 27, 2020.

4. Relying upon 2023 Volume 4 Calcutta High Court Notes 320 (Shri Kamal Kishor Jhawar vs. Shri Sunil Jhawar and others) and 2009 Volume 2 CLJ (Cal) 276 (Nellimarla Jute Mills Company Ltd. vs. Rampuria Industries & Investments Ltd.) learned advocate appearing for the defendant has contended that, the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 was required to be heard and decided first prior to the learned Trial Judge hearing and deciding the application under Order 6 Rule 17 thereof.

5. Learned advocate appearing for the defendant has relied upon 2016 Volume 14 Supreme Court Cases 275 ( R. K. Roja vs. U. S. Rayudu and Another) and contended that, an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 can be filed at any stage and that, without disposing of such an application, the Court cannot proceed with the trial.

6. Learned Senior Advocate appearing for the plaintiffs has contended that, the plaintiffs sought to amend the plaint in order to incorporate certain facts which the plaintiffs came to know subsequent to the filing of the suit.

7. Learned Senior Advocate appearing for the plaintiffs has contended that, pendency of an application for rejection of the plaint should not prevent a Court to consider and decide an application for amendment. He has contended that, in the event, the proposed amendments cure any defect in the suit, the same should be allowed and such an application should be heard and decided prior to the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. In support of such contentions, he has relied upon AIR 1951 Cal 262 (Ahmed Hossein vs. Mt. Chembelli and Ors.) and 2009 Volume 3 CHN 24 (Nellimarla Jute Mills Company Ltd. Vs. Rampuria Industries & Investments Ltd.)

8. The plaintiffs had filed Title Suit No. 155 of 2019 in the Court of the learned Civil Judge Senior Division at Jalpaiguri seeking a decree for declaration that, the plaintiffs are owners of the Schedule-B property which includes Schedule-A property and that, the defendant has no right, title and interest in respect of Schedule A and Schedule B property and that, the specified title deeds in respect of the suit properties all involving the defendant, are void and not binding upon the plaintiffs as also a decree for perpetual injunction.

9. In such suit, the defendant had filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 on January 13, 2020. During the pendency of such an application, the plaintiffs had filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 seeking introduction of various pleadings in the body of the plaint and some prayers in the plaint.

10. It appears from the materials made available on record that, the plaintiffs, have claimed right, title and interest in support of the suit property through heirs, legal representatives of one Sahabuddin. The def