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Appeal from Appellate Decree No. 69 of 1955, decided on 31st March 1966.

‑Plaint‑Not disclosing any cause of action-- Suit cannot be dismissed but should be rejected under O. VII, r. 11‑Rejection of plaint‑Decree within S. 2(2)‑Rejection, nevertheless, on grounds mentioned in O. VII, r. 11 does not preclude plaintiff" from presenting fresh plaint in respect of same cause of action.

A. K. M. N. Islam for Appellants.

Latifur Rahman for Respondents. ,

Abdul Karim for Deputy Registrar.

.‑The plaintiff is the appellant. Her suit is for declaration that the preliminary decree passed in the partition Suit No. 97 of 1960 which was originally numbered as 47 of 1948 on 30‑12‑1961, is not binding on her. We need not discuss the pleadings of the parties, inasmuch as, that is neither necessary in view of the order we propose to make or on the arguments advanced by the learned Advocates for the appellants.

The suit was dismissed on a preliminary point by the trial Court on the finding that the plaint did not disclose any cause of action. The same decree was also upheld on appeal. Hence this present second appeal.

It is contended on behalf of the appellants that in view of the provisions of Order VII, rule 11 of the Code that the plaint shall be rejected where it does not disclose any cause of action, the instant suit could not have been dismissed on the finding that the plaint did not disclose any cause of action but the plaint should have been rejected. We find substance in this contention. Though a rejection of a plaint for not disclosing any cause of action is a decree under section 2 (2) of the Code of Civil Procedure, yet in view of the provision of rule 13, of Order VII, the rejection of a plaint on any of the grounds mentioned in rule 11, of Order VII of the Code shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Having regard to all the facts, we find substance in the contention of the learned Advocate for the appellant; but we cannot concede to his prayer that the suit may be remanded to the trial Court. The partition suit was instituted in 1948 and was decreed on 30‑12‑1960. In that suit the plaintiff was the defendant No. 12 and filed a written‑statement and took other steps but did not appear as her prayer for adjournment of the partition suit was not granted. Then again, the instant second appeal was presented to this Court on 21‑12‑1964, and thereafter about twelve years have elapsed. So having regard to all these facts, we are unable to send the case back on remand in the trial Court.

We accordingly allow the appeal, modify the judgments and decrees passed by the lower Courts. We reject the plaint as it does not disclose any cause of action. Having regard to the facts, we leave the parties to bear their own costs.

.‑‑I agree.

K. B, A.

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