JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. 1. It is observed from the record that the appellant No. 1, namely, Deb Kumar Banerjee who is defendant No. 1 in the suit has already been substituted by order dated 07.08.2024. The name of the legal representative of the appellant No. 1 has not been incorporated in the memo of appeal. Office is directed to carry out the direction with regard to insertion of the name of legal representative of the appellant No. 1 in terms of order dated 07.08.2024. The details of the legal representative of the appellant No. 1 are as follows : - Sudip Banerjee, aged about 54 years, Son of Late Deb Kumar Banerjee, Resident of 3, B.G. Road, Haora (M. Corp.), P.O. & P.S. Haora, District Howrah (West Bengal), Pin Code –711103. 2. Heard the learned counsel appearing on behalf of the parties. 3. This second appeal has been filed against the judgment and decree dated 30.05.2018 and 13.06.2018 respectively passed by the learned District Judge-II, Giridih in Civil Appeal No. 24 of 2013 reversing and setting aside the order and decree dated 16.03.2013 and 04.04.2013 respectively passed by the learned Civil Judge (Sr. Division)-III, Giridih in Title Suit No. 61 of 2009. 4. The substantial question of law which was framed yesterday i.e.15.01.2025 is quoted as under: - “Whether the first appellate court after arriving at a conclusion that the suit was wrongly dismissed by referring to the Order VII Rule 11 of CPC ought to have remanded the matter to the learned trial court for decision on the various issues framed by the court and whether the learned courts could have entered into the merits of the matter based on the case of the parties while considering the matter regarding rejection of plaint under Order VII Rule 11 of C.P.C?” Arguments of the appellants 5. The learned senior counsel for the appellants has submitted that the suit was dismissed by the learned trial court upon a petition filed by the defendants under Order VII Rule 11 of CPC by holding that the suit was barred by res-judicata. He submits that the learned appellate court has allowed the appeal by holding that the learned trial court wrongly decided that the suit was barred by the principles of res-judicata. He submits that the learned appellate court has allowed the appeal by holding that the learned trial court wrongly decided that the suit was barred by the principles of res-judicata. The learned senior counsel submits that upon having held as aforesaid that the suit was not barred by res-judicata at the stage of Order VII Rule 11 of the CPC, the learned appellate court ought to have remanded the matter to the trial court for deciding the issues which were already framed by the learned trial court. 6. It has been also argued by the learned senior counsel for the appellants by referring to the judgment passed by the Hon’ble Supreme Court reported in 2023 Live Law SC 1033 that no amount of evidence or merit of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 of the CPC. The learned senior counsel for the appellants has also submitted that the trial court as well as the appellate court have travelled beyond the scope of Order VII Rule 11 of the CPC. Although the trial court rejected the plaint and the appellate court set aside the order of the trial court, but the appellate court has also considered the merit of the matter while holding that the plaint was wrongly rejected. He submits that accordingly observation may be made that the suit be decided without being prejudiced by any of the observations/ findings of the trial court as well as by the appellate Court. 7. The learned senior counsel has also submitted that at the time of filing the petition seeking rejection of plaint the suit was already in advance stage, inasmuch as, the issues were already framed and the evidence had commenced. He has also submitted that the question of law be decided and the matter be remitted to the learned trial court to decide the issues in accordance with law. He has also submitted that some time frame may be granted, inasmuch as, the title suit is of the year 2009. Arguments of the respondents 8. He has also submitted that the question of law be decided and the matter be remitted to the learned trial court to decide the issues in accordance with law. He has also submitted that some time frame may be granted, inasmuch as, the title suit is of the year 2009. Arguments of the respondents 8. Learned counsel appearing on behalf of the respondents is not in a position to dispute that once the order rejecting the plaint in terms of Order VII Rule 11 of CPC has been set-aside by the learned appellate court, the case ought to have been remanded to the learned trial court for decision on the issues which were already framed in the suit even prior to filing of petition seeking rejection of plaint under Order VII Rule 11 of CPC. 9. The learned counsel for the respondents also does not dispute the well-settled principle of law as reiterated by the Hon’ble Supreme Court in the aforesaid judgment wherein it has been held that no amount of evidence or merit of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 of the CPC. He has also submitted that some time frame may be granted so that the suit be ultimately decided by the court concerned. Admittedly, no cross appeal or cross objection has been filed in the present case arising out of the order passed by the learned appellate court. Findings of this Court 10. Upon perusal of the order rejecting the plaint under Order VII Rule 11 of CPC passed by the learned trial court, it is apparent that the plaint was rejected by appreciating the case of both the parties and by taking into consideration the previous partition suit on the basis of which a plea was raised by the defendants that the suit was barred by res-judicata. So far as the learned appellate court is concerned, the appellate court also entered into the merits of the matter and recorded a finding that the learned trial court erroneously arrived at a conclusion that the suit was barred by res- judicata. The learned appellate court also compared the previous Partition Suit No. 18 of 1995 with the present Title Suit No. 61 of 2009. 11. The learned appellate court also compared the previous Partition Suit No. 18 of 1995 with the present Title Suit No. 61 of 2009. 11. This Court finds that both the learned courts have entered into the merits of the case while dealing with the petition filed under Order VII Rule 11 of the CPC. The learned trial court rejected the plaint on the ground of res-judicata and the learned appellate court reversed the finding of the learned trial court and allowed the appeal. 12. In the judgment passed by the Hon’ble Supreme Court reported in 2023 Live Law SC 1033 , it has been held in paragraph 26 of the judgment that no amount of merit of the controversy can be examined at the stage of the decision of the application under Order VII Rule 11 of CPC. This Court finds that the law applicable with regard to Order VII Rule 11 of CPC has been summarized in the aforesaid judgment in paragraph 19 by quoting the earlier judgment passed by the Hon’ble Supreme Court in (2020) 7 SCC 366 . 13. In the present case, while deciding the petition under Order VII Rule 11 of CPC, the learned trial court as well as the appellate court have compared the materials in connection with the earlier partition suit which certainly did not form a part of the records of the plaint and the point was taken up on merits with regard to plea of res-judicata. Such a course of action is impermissible while deciding petition under Order VII Rule 11 of CPC. 14. This Court is of the view that once the order of the trial court rejecting the plaint under Order VII Rule 11 of CPC was set-aside by the learned appellate court, the matter ought to have been remanded to the learned trial court for deciding the case on merits by considering the issues which were already framed by the learned trial court. 15. In view of the aforesaid findings, the substantial question of law as quoted above is hereby answered by holding that the first appellate court after arriving at a conclusion that the suit was wrongly dismissed by referring to Order VII Rule 11 of CPC, ought to have remanded the matter to the learned trial court for decision on the various issues framed by the learned court. It is also held that the learned courts could not have entered into the merits of the matter based on the case of the respective parties while considering the matter regarding rejection of plaint under Order VII Rule 11 of C.P.C. The appellate court while setting aside the order rejecting the plaint under Order VII Rule 11 of CPC ought to have remanded the matter to the learned trial court for deciding the issues already framed by the learned court. Accordingly, the matter is remanded to the learned trial court for deciding the suit in accordance with law. In view of the aforesaid, it is further observed that the learned trial court while deciding the case and the issues framed will not be prejudiced by the findings/observations made by the learned trial court as well as by the appellate court. 16. At this, the learned counsel for the parties have also submitted that appropriate order may be passed for expeditious disposal of the suit. They have undertaken to cooperate with the final disposal of the suit. 17. Considering the submission and the fact that the suit is of the year 2009, the learned trial court is directed to expedite the disposal of the suit. The parties have already undertaken to cooperate with the final disposal of the suit. 18. The parties are directed to appear before the learned trial court on 24 th March, 2025 at 11.00 am. 19. This second appeal is disposed of with the aforesaid observations and directions. 20. Pending I.A., if any, is closed. 21. Let a copy of this order be communicated to the learned trial court as well as learned appellate court through ‘FAX’.