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4) Heard Ms. Radhika Gautam, learned counsel for the appellant and Mr. Sudhir Chandra, learned senior counsel for respondent No.1 and Mr. T. V. Ratnam, learned counsel for respondent No.2.

5) The only point for consideration in this appeal is whether the High Court is justified in confirming the decision of the lower appellate Court and remitting the matter to trial Court for fresh consideration of all the issues.

6) In order to ascertain an answer for the above question, we have to consider whether the application under Order VII Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial Court allowed the application of the appellant/defendant No.1 filed under Order VII Rule 11 CPC on the ground that the plaint was barred under the provisions of Order IX Rules 8 & 9 CPC and Order XXIII Rule 1 (3) & 4 (b) of CPC. The said order of the trial Court was set aside by the first appellate Court on the ground that the trial Court had taken the pleas from the written statement of the defendant which is not permissible under Order VII Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate Court.