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Parbhu Dayal and anr. Vs. Kamta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All165
AppellantParbhu Dayal and anr.
RespondentKamta and ors.
Excerpt:
civil procedure code, 1908, order xli, rule 23 - remand--preliminary point--issues framed and evidence taken, but suit decided upon one issue only. - walsh and stuart, jj.1. in this case four issues were framed. the munsif decided the first issue in favour of the defendants and dismissed the suit. now the first issue was an issue which if decided in favour of the defendants, finally disposed of the suit. if on the other hand it was decided in favour of the plaintiffs, it left other issues undetermined, and the suit therefore came up to the appellate court in the condition that if the first issue was wrongly decided, the remaining issues had not been decided at all, and it was necessary to decide them. having regard to the previous decisions in this court and particularly to the decision in mata din v. jamna das (1905) i.l.r. 27 all. 691, we think that that was a preliminary point within the meaning of order xli, rule 23. it is.....
Judgment:

Walsh and Stuart, JJ.

1. In this case four issues were framed. The Munsif decided the first issue in favour of the defendants and dismissed the suit. Now the first issue was an issue which if decided in favour of the defendants, finally disposed of the suit. If on the other hand it was decided in favour of the plaintiffs, it left other issues undetermined, and the suit therefore came up to the appellate court in the condition that if the first issue was wrongly decided, the remaining issues had not been decided at all, and it was necessary to decide them. Having regard to the previous decisions in this Court and particularly to the decision in Mata Din v. Jamna Das (1905) I.L.R. 27 All. 691, we think that that was a preliminary point within the meaning of Order XLI, Rule 23. It is important that on these questions of practice the decisions of the Court should be consistent. We think therefore that the case was a proper one for remand under that order. We are not disposing of the suit which still remains to be decided on the result of issues 2, 3, and 4 in the Munsif's court. This appeal must be dismissed with costs.


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