ORAL ORDER

1. Heard learned advocate for the petitioner and learned advocate for the respondent.

2. Instant petition is filed with following reliefs :-

"A) Call for records & proceedings of Civil suit No. 931 of

2021 from the City Civil Court at Ahmedabad and peruse;

B) Quash and set aside order at Annexture - G dated 16.06.2023 passed on Ex.-56, and direct the City Civil Court to decide Ex.-45, Ex.-70 and other application under S.340(1) pending before it earlier than hearing of Ex.-40, or alternatively direct the City Civil Court to decide all applications i.e. Ex. 36, 40, 45, 70 and other application u/s.340 together- simultaneously- in the interest of justice;

(C) In alternatively, petitioners pray that this petition may kindly be treated as application filed u/s. 340(2) of CrPC and decide it in accordance with law, in the interest of justice;

(D) Pending admission, hearing and final disposal of this petition, by way of interim relief or ad interim relief, stay the further proceeding in the Civil Suit No. 931 of 2021 and direct further that Interim relief granted in Ex.-5 to be continued till further order, in the interest of justice;

(E) Such other and further relief(s) which deem fit may kindly be granted, (F) Cost of this application may kindly be awarded"

3. In essence, the petitioner challenges finding of learned Trial Court, whereby, learned Trial Court has given priority to hearing of the application filed under Order 7 Rule 11 of CPC for rejecting the plaint at Exh.40. It is submitted by learned advocate for the petitioner that prior to filing of application Exh.40, the petitioner has filed application Exh.36 under section 340 of Cr.P.C. to take necessary action against defendant for filing false facts on oath. This application was twice heard but not disposed of by the Court. It is submitted that another application Exh.70 was filed under section 340 of Cr.P.C. for false statement in application Exh.40, yet this application is not heard and respondent in order to derail the proceedings of section 340 of Cr.P.C., filed application under Order 7 Rule 11 of CPC for rejection of plaint. Learned advocate for the petitioner would submit that learned Trial Court committed error in passing order below Exh.56 and giving priority to hearing of application filed under Order 7 Rule 11 of CPC, instead of deciding application Exh.36 which is filed prior in point of time. He would submit that the Court may give priority to hearing of application under Order 7 Rule 11 of CPC along with said application, the Court should also decide application filed under section 340 of Cr.P.C. Learned advocate for the petitioner submits that if the Court decides application under Order 7 Rule 11 of CPC against the plaintiff and believes that Court has no jurisdiction to try and decide application, then application under section 340 of Cr.P.C. would remain without decision and in such circumstances, the plaintiff has to burden High Court under section 340(3) of Cr.P.C. for decision of this application. He would further submit that either applications be may heard together or application filed prior point in time be heard first. Learned advocate for the petitioner placed reliance on the decision of the Hon'ble Apex Court in the case of M.S.Sheriff v/s. State of Madras [AIR 1954 SC 397] as well as judgment in the case of Rugmini Ammal (Dead) By Lrs. v/s. V.Narayana Reddiar [2007 (12) SCC 611].

3.1. Upon above submission, it is submitted to allow the petition.

4. On the other hand, learned advocate for the respondent submitted that it is settled principle of law that whenever application under Order 7 Rule 11 of CPC is filed, same is to be decided on priority basis leaving other applications aide as issue which is raised in application under Order 7 Rule 11 of CPC reaches to core and jurisdiction of concerned Court and in that circumstances, learned Trial Court has not committed any error in granting application Exh.56. Therefore, it is submitted not to allow