JUDGMENT Hon’ble Amitava Lala, J.—This appeal is preferred from an order dated 15th October, 2007 passed by the first appellate Court under Rule 23 and/or 23-A of Order XLI of the Code of Civil Procedure, 1908 remanding the case to the trial Court for the purpose of hearing afresh. Order XLI Rule 23 and 23-A are quoted herein below : "23. Remand of case by Appellate Court.—Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand. HIGH COURT AMENDMENTS Allahabad—In Order XLI, in Rule 23,— (a) after the words “and the decree is reversed in appeal, insert the words "or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it.” (b) Omit the words “the Appellate Court” occurring thereafter and omit also the words “if it thinks fit”, occurring after the word “may”. (w.e.f. 1-6-1957) 23A. Remand in other cases.—Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23." 2. The contention of the defendants-appellants is that the appeal shall lie before this Court on such order as per Order XLIII, Rule I (u) which says : (u) an order under Rule 23 [or Rule 23A] or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; 3. After satisfying the Court’s jurisdiction, Mr. Amit Daga, learned Counsel in support of the appeal contended that the first appellate Court was wrong in remanding the suit. After satisfying the Court’s jurisdiction, Mr. Amit Daga, learned Counsel in support of the appeal contended that the first appellate Court was wrong in remanding the suit. The plaint was based on three several documents which are compulsorily registrable under U.P. Amendment of Section 17 of the Registration Act. Since those documents are not registered, nothing is required to be proved as per Section 58 of the Indian Evidence Act, 1872 in the trial Court. Hence, the plaint was rightly rejected by the trial Court, which failed to appreciate by the appellate Court at the time of passing the order of remand. 4. We have carefully gone through the judgment of the appellate Court and found that the question of possession was considered relevant in a suit for declaration and injunction. Respective possession of the property is in the hands of the plaintiffs-respondents. According to us when the title and possession both are the questions for consideration, it is imperative upon a judge to adjudicate the question of possessory right irrespective of the title. Having so, inclination of consideration of mixed question of fact and law cannot be avoided. In further the defendants entered appearance in the Suit on 17th September, 2002 and filed an application for rejection of the plaint on 24th September, 2002 under Order VII Rule 11 of the Code of Civil Procedure and thereafter slept away with it. After about two years from such date of making the application, on 16th November, 2004, they filed written statement denying the factual allegations and confronting the claim of the plaintiffs-respondents based on unregistered documents by saying that their right is flowing from registered documents to have the right over the property. 5. Learned Counsel appearing for the appellants contended that when the application for rejection of the plaint was pre-existing an order can be passed by the trial Court irrespective of filing of the written statement. According to us, it will not be wrong to presume that the application for rejection of the plaint was definitely not pressed at the appropriate time otherwise it would have been disposed of long before. Therefore, when the defendants were not diligent, they cannot be entitled to such relief without the acid test. 6. According to us, it will not be wrong to presume that the application for rejection of the plaint was definitely not pressed at the appropriate time otherwise it would have been disposed of long before. Therefore, when the defendants were not diligent, they cannot be entitled to such relief without the acid test. 6. We have gone through the relevant provisions of settlement of issues and determination of suit on issues of law or on issues agree upon under Order XIV of the Code of Civil Procedure, 1908. This Order XIV speaks about framing of issues on fact and law. The Court at an appropriate circumstance ascertain propositions of fact or law the parties are at variance and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. As per limited scope under Rule 2, sub-rule (2) of Order XIV when the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of other issues until after that issue has been determined, and may deal with the suit in accordance with the decision of that issue. 7. It can also extend the scope up to Chapter VII Rule 11 of the Code of Civil Procedure as follows : "11. 7. It can also extend the scope up to Chapter VII Rule 11 of the Code of Civil Procedure as follows : "11. Rejection of plaint.—The plaint shall be rejected in the following cases : (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9 : Provided that the time fixed by the Court for correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 8. According to Mr. Daga the Clause-(d) of Rule 11 applies in this case. According to us, there is gulf difference between the suit is barred by any law or plaint is barred by any law which he overlooked. When the suit is barred by law it hits directly by sub-rule (2), Rule 2 of Order XIV of the Code. But when the plaint is barred by law as under Order VII Rule 11 of the Code it has to be subjective satisfaction of the Court as to whether question of rejection of plaint is arising out of law or out of fact or out of mixed question of law and fact. Only in the first category cases Court frames a preliminary issue and pass an appropriate order irrespective of framing or deciding other issues. It can so happen postponing the other issues or placing such issue as preliminary issue above other issue/s. It is always open to the Court to ascertain demurrer at any stage provided such cause is available. Only in the first category cases Court frames a preliminary issue and pass an appropriate order irrespective of framing or deciding other issues. It can so happen postponing the other issues or placing such issue as preliminary issue above other issue/s. It is always open to the Court to ascertain demurrer at any stage provided such cause is available. The appellate Court did not debar the appellants/plaintiffs to get it adjudicated by the trial Court in an appropriate manner but not the way it was done. 9. Learned Counsel for the appellants relied upon judgments reported in 2004 (3) SCC 137 , Sopan Sukhdeo and others v. Assistant Charity Commissioner and others and also 2003 (1) SCC 557 , Saleem Bhai and others v. State of Maharashtra and others. Both the cases are supporting the observation of the Court that question of rejection can be adjudged at any stage irrespective of filing written statement. Neither we are against such principle nor the first appellate Court as seems to be. The logic behind the same is that bogus litigations should be nipped in the bud. But the defendants, if slept with the application under Order XIV of Rule II (sic) of the Code and after two years filed written statement and again about two years thereafter want to obtain an order of rejection of the plaint by the trial Court, then it will not be proper to ignore all other aspects and reject the plaint in limine. 10. Therefore, we cannot admit the appeal and the same is dismissed without imposing any cost. However, passing of this order is nowhere debar the appellants to suggest such issue to frame as preliminary issue for its appropriate disposal. In any event the nature of the suit does not prescribe prolonged hearing, therefore, directed to be disposed of as expeditiously as possible without affording unnecessary adjournments. Parties are directed to co-operate. At the time of the consideration of the cause, the trial Court will not be influenced either by the order of this Court and also order of the first appellate Court and decide independently. Hon’ble Shishir Kumar, J.—I agree. . ————