ORDER S. C. Pandey, J. 1. This revision is directed against the orders dated 10.9.96 and 12.9.96 passed by the trial Court in Civil Suit No. 283-A/95. 2. The non-applicants No. 1 to 3 had filed Civil Suit No. 283 - A/95 against the applicant and the non-applicants No. 4 to 8 for declaration that they were owners of the suit property and for permanent injunction restraining the non-applicants Nos. 4 to 8 from passing any further orders in respect of the suit property. Another prayer for declaration was made to the effect that the suit property is not evacucee property. The non-applicants Nos. 1 to 3 further prayed that the sale-deed dated 29.7.91 executed by the non-applicant No. 7 in favor of the applicant is liable to be declared as illegal and void. 3. The non-applicant Nos. 1 to 3, in their plaint, pleaded that suit property was purchased by their father late Yasin Ali from Sultan Khan by a registered sale-deed dated 22.9.1941. Since then their father and thereafter, the non-applicants No. 1 to 3 were exercising their rights of ownership of the suit property. The applicant was their tenant from the year 1958 onwards and was paying Rs. 1200/- yearly rent in respect of suit property. It was further pleaded in the plaint that the applicant, with a view to defraud the non-applicants No. 1 to 3 for making an unlawful gain, practiced an invidious and reprehensible fraud upon Government and them. According to the non-applicants Nos. 1 to 3, the applicant obtained a sale-deed dated 29.7.1991 from the non-applicant No. 7, by suppressing the facts that he was a tenant of non-applicants No. 1 to 3, and suit property was not an evacuee property. It was alleged in the plaint that neither Seth Yasin Ali nor the non-applicant Nos. 1 to 3 ever shifted to Pakistan. The suit property could not be treated as evacuee property without any notice to non-applicants No. 1 to 3 or their father Yasin Ali. The property, in question, is not recorded as evacuee property in the Register of Evacuee Property, it was further pleaded, in any case, after 1956 there could be no such declaration and declaration, if any, would be void. 4. As the proceeding of sale in favor of the applicant, presumably under Displaced Persons (Rehabilitation and Compensation) Act, 1954.(henceforth, 'the Act of 1954'), contended in the paint. 4. As the proceeding of sale in favor of the applicant, presumably under Displaced Persons (Rehabilitation and Compensation) Act, 1954.(henceforth, 'the Act of 1954'), contended in the paint. the non-applicants No. 1 to 3 did not receive notice of the application filed by the applicant for setting the property with him. The only notice that was received by them was on 28.8.89, which was served by the non-applicant No. 6, to which a detailed reply was given showing that the suit property could not be held to be an evacuee property. Thereafter, an objection too was filed on 13.9.90 on behalf of the non-applicants No. 1 to 3. The non applicant No. 5, however, passed a superficial order dated 27.7.91. Thereafter, the sale-deed in favor of the applicant was executed. 5. Thereafter, a notice under Section 33 of the Act of 1954 was received by the non-applicants No. 1 to 3 but their objection was rejected by order dated 4.12.91. 6. It was further stated that the non-applicants No. 1 to 3 had filed a Miscellaneous Petition in the High Court of M. P. at Jabalpur, but the same was not accepted as disputed questions of facts were involved and it was held that the proper remedy was a civil suit. 7. The applicant had filed an application under Order 7 Rule 11 of the Code of Civil Procedure without filing a written statement. 8. The Court-below has. however, passed an order dated 10.9.96 refusing to give any opportunity to the applicant, to file a written statement. However, it was the duty of the trial Court to decide the application under Order 7 Rule 11 of the Code of Civil Procedure before ordering that right of the applicant to file his written statement has come to an end. Apart from this that no judgment was pronounced on the same day as per Order 8 Rule 10 of the Code of Civil Procedure or evidence recorded as per Order 17 Rule 3 of the Code of Civil Procedure, and, therefore, the order dated 10.9.96 is bad. The provisions of Order 7 Rule 10 and 11 of the C. P. C. are brought to the notice of the trial Judge. It is clear from these rules that a plaint can be returned or rejected as such. The provisions of Order 7 Rule 10 and 11 of the C. P. C. are brought to the notice of the trial Judge. It is clear from these rules that a plaint can be returned or rejected as such. Therefore, this mis-apprehension in the mind that objection under Order 7 Rule 10 or Order 7 Rule 11 of the C. P. C. can only be decided after filing the written statement has to be remedied. In the opinion of this Court, it would be doing violence to language of the aforesaid rules of Order 7, if the trial Court demands a written statement before deciding the objection. It is duty of the trial Court to see if the plaint as such is triable or it is liable to be returned. Similar is the case if the plaint is liable to be rejected on the ground mentioned in Order 7 Rule 11 of the C. P. C. Therefore, a defendant has a right to file an application or even raise on oral objection for raising grounds based on Order 7 Rule 10 or Order 7 Rule 11 of C. P. C. The Court cannot direct the defendant to file the written statement for raising objections, if he does not desire to do so. Of course, the aforesaid observations do not mean that a defendant, if he chooses to do so, cannot raise these objections in the written statement itself or subsequently. For all these reasons, the Order dated 10.9.96 is set aside and it is held that the applicant has a right to file the written statement. 9. The next question that has to be decided is if the order dated 12.9.96 is good in law. It appears to this Court that reasoning given by the trial Court for holding that the suit is maintainable is in-correct. The learned counsel for the applicant is absolutely right in contending that the decision in M. P. No. 4562/95, dated 2.9.93 was passed without notice to the applicant and further that the writ petition was dismissed and, therefore, this decision could not be res judicata. Since the applicant was not noticed and was not heard, this order could not bind the applicant. Since the applicant was not noticed and was not heard, this order could not bind the applicant. Moreover, he had no right of appeal and, therefore, even if it be held that this Court decided a point against the applicant and in favor of the non-applicants No. 1 to 3, then also this decision would not deprive the applicant from arguing before trial Court that the plaint is liable to be rejected (See the cases of Midnapur Zamindarl Company Ltd. v. Naresh Narayan Roy A. I. R. 1922 P. C. 241 and Waris Khan and others v. Ahmadullakhan and others A. I. R. 1952 Nag 238. The Nagpur High Court, which is predecessor of this Court held at page 239, paragraph 7, following the aforesaid decision of Privy Council, as follows :- .....That, however, in our opinion, does not alter the matter for having succeeded in that appeal they could not have preferred any further appeal for challenging an adverse finding contained in the judgment. The case accordingly fails within the rule laid down by their Lordships of the Privy Council in Midnapur Zamindari Co-Ltd. V. Naresh Narayan Roy, 46 Cal. 457. This is what their Lordships observed at p. 467 : Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them....... 10. That apart the decision in the aforesaid case the writ petition is not on merits and, therefore, the trial Court should have decided the case on merits. 11. Now, it remains to be decided if the plaint is liable to be rejected on ' the ground that the suit is barred and, therefore, plaint is liable to be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure. 12. The contention of the learned counsel for the applicant is that it is liable to be rejected both under the Administration of Evacuee Property Act of 1950 (hereinafter referred to as the Act of 1950) and under the Act of 1954. 13. On the other hand, the learned counsel for the non-applicants No. 1 to 3 stoutly opposes the stand taken up by the counsel for the applicant. 14. 13. On the other hand, the learned counsel for the non-applicants No. 1 to 3 stoutly opposes the stand taken up by the counsel for the applicant. 14. It is trite law to say that the Court must read the plaint as a whole before accepting it or rejecting it. This Court has already stated salient features of the plaint earlier. It is clear from the statement in the plaint that the non-applicants No. 1 to 3 say the property in question was never declared as Evacuee Properly under the Act of 1950, and it could not be so declared after 1956. However, they are wrong regarding year because under Section 7 of the Act of 1950, if no proceedings under Section 7 were pending on or before 7 May, 1954, the question of declaring evacuee property did not arise. The Supreme Court in the case of Dr. Rajendra Prakash Sharma v. Gyan Chandra and others, A. I. R. 1980 S. C. 1206. at page 1210, paragraph 23 held as follows : .....Therefore, if the custodian had not taken any proceedings under Section 7 of the 1950 Act to declare the suit property as evacuee property before the 7th Day of May 1954 and no such proceedings were pending on May 7, 1954, the property of Quazi Abdul Rashid could not be declared evacuee property under the Act, the power of the custodian to do so having been terminated by Section 7A. 15. In the opinion of this Court once it is held that the plaint allegations show that the claim of the non-applicants No. 1 to 3, that no proceedings under Section 7 of the Act of 1950 were taken up, then question of the holding the suit is barred under Section 28 and 46 of that act does not arise. In the case of Custodian, Evacuee Property, Punjab and others-V. Jafran Bagum, A. I. R. 1968 S. C. 169, it was held that Section 28 and 46 of the Act of 1950 bar jurisdiction of Civil Court in respect of the matters which have been decided or can be decided under Section 7 of that Act. Following that case, the Supreme Court, in Dr. Following that case, the Supreme Court, in Dr. Rajendra Prakash Sharma's case (supra) at page 1212 held that:- .....From the crucial words underlined in the above extract, it is clear that even according to the rule of the above decision Section 46 will not bar the jurisdiction of the Civil Court were the custodian has never declared the property as evacuee property after taking proceedings under Section 7 of the 1950 Act." (paragraph 27) and further the Supreme Court in paragraph 29, at page 1212 observed that :- The matter can be looked at from another angle also. Clauses (a), (c) and (d) of Section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian-General or the Custodian under this Act of 1950 to determine that question is submitting. That is to say. if at the point of time when the question arises, the power of the authorities constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of S. 7A of 1954. none of the clause (a), (c) and (d) of Section 46 will bar the jurisdiction of the civil court to determine that question, which had not been decided by the Custodian during the period he had the power to determine it. In paragraph 30, at page 1212 it was further observed by the Supreme Court that :- Section 28 has no application to the facts of the instant case because no order made by any of the authorities mentioned in that section is being called in question. Section 46, also does not come in the way because no proceedings under Section 7 of the 1950 Act to declare the suit house an evacuee property were taken by the Custodian................ 16. Thus, in view of the Supreme Court decision it is not necessary to dwell any further so far as the Act of 1950 is concerned. 17. The next question that has to be decided is if the suit is barred under Section 27 of the Act of 1954. In Dr. 16. Thus, in view of the Supreme Court decision it is not necessary to dwell any further so far as the Act of 1950 is concerned. 17. The next question that has to be decided is if the suit is barred under Section 27 of the Act of 1954. In Dr. Rajendra Prakash Sharma's case, (supra) it has been laid down as follows :- .....Again, the necessary prerequisites for sale is that the property must have been declared under Section 7 of the 1950 Act to be evacuee property by the custodian or it must be evacuee property under the deeming provisions of any law which may be applicable to the case of evacuee. In other words, only that property which was evacuee property could be acquired under Section 12 and form part of the compensation pool which satisfies the definition of "evacuee property given, in S. 2 (c) of the 1954 Act. If the property was never evacuee property, as defined in Section 2 (c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 of the Rules framed under this statute." (paragraph 36 at page 1213.) It is, therefore, clear that the scheme of the Act of 1954 requires that the property must be declared as evacuee property. If it is not so declared, then the question of applying the Act of 1954 does not arise. If the Act of 1954 is not applicable, the proceedings under that Act cannot be taken. Interpreting Section 27 of the Act of 1954, the Supreme Court in the case of Dr. Rajendra Prakash (supra), in paragrah 39, at page 1213 laid down as follows :- ......The word "under this Act" occurring in Section 27 are significant. They show that those orders which are not made by any officer or authority in accordance with the provisions of this Act, but outside the provisions of this Act in excess of jurisdiction, can be called in question in the civil court. It may be noted that the language of Section 27 is not at wide as that of Sec. 46 of the 1950 Act. 18. It may also be noted that apart from above legal position, the other allegations in the plaint, show that the non-applicants No. 1 to 3 have also alleged in the plaint regarding the fraud played upon them by the applicant. 18. It may also be noted that apart from above legal position, the other allegations in the plaint, show that the non-applicants No. 1 to 3 have also alleged in the plaint regarding the fraud played upon them by the applicant. The allegations amount to that the applicant, being a tenant, openly suppressed relevant facts from the eyes of the concerned authorities, with a view to the defraud the non-applicants. It is well settled that fraud vitiates the most solemn of the proceedings and an order or a decree obtained by playing fraud on Court renders the order or the decree nullity in the eyes of law; and the suit would lie to set aside the order obtained by practicing fraud (see the case of Rajwani Prasad Pandey and others v. Ram Ratan Gir and others, A. I. R. 1915 P. C. 99. 19. The result of the aforesaid discussion is that the revision partly succeeds. The order dated 10.9.96, passed by the trial Court is set aside and it is directed that the applicant shall be permitted to file his written statement. It is made clear that the observations made hereinbefore are based only on plaint allegations. The applicant shall be free to controvert the facts stated in the plaint and establish during the trial that the suit is not maintainable, by establishing that facts pleaded in the plaint are not correct. However, the impugned order of the trial Court dated 12.9.96 is maintained. It is further directed that the parties shall appear before the trial Court on 5th of January, 1997, for taking further date. No costs. Appeal allowed