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Ram Saraf Vs. Mani Dei and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 360 of 1968
Judge
Reported inAIR1969Ori295; 35(1969)CLT602
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 2, Rule 2 - Order 14, Rule 2
AppellantRam Saraf
RespondentMani Dei and anr.
Appellant AdvocateR. Mohanty, ;R.K. Kar and ;S.N. Kar, Advs.
Respondent AdvocateB.K. Pal, ;B. Pal and ;A. Mohanty, Advs. for Opposite Party No. 1
DispositionRevision dismissed
Excerpt:
.....to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 4. it is well known that the suit must be tried as a whole and not piece-meal unless it involves the question of jurisdiction......are :--'(7) is the suit maintainable in view of article 113 of the limitation act?(8) is the suit barred under order 2, rule 2 c. p. c.?'the learned munsif rejected this prayer. against the order this civil revision has been filed.2. the other important issues are issues nos. 3 to 5. they are:--'(3) is the suit barred by principle of constructive res judicata?(4) has the plaintiff acquired right of easement either by grant or necessity?(5) is the deed of agreement dated 19-3-57 a fraudulent document?'3. mr. mohanty contended that on the face of the averments in the plaint the suit is barred by limitation under article 113 of the limitation act, and on the face of the judgment in certain previous suits the present suit is barred by order 2, rule 2 c. p. c.4. it is well known that.....
Judgment:

G.K. Misra, J.

1. There were 8 issues in the suit. An application was filed by defendant No. 1 that issues 7 and 8 should be tried as preliminary issues. Those issues are :--

'(7) Is the suit maintainable in view of Article 113 of the Limitation Act?

(8) Is the suit barred under Order 2, Rule 2 C. P. C.?'

The learned Munsif rejected this prayer. Against the order this Civil Revision has been filed.

2. The other important issues are issues Nos. 3 to 5. They are:--

'(3) Is the suit barred by principle of constructive res judicata?

(4) Has the plaintiff acquired right of easement either by grant or necessity?

(5) Is the deed of agreement dated 19-3-57 a fraudulent document?'

3. Mr. Mohanty contended that on the face of the averments in the plaint the suit is barred by limitation under Article 113 of the Limitation Act, and on the face of the judgment in certain previous suits the present suit is barred by Order 2, Rule 2 C. P. C.

4. It is well known that the suit must be tried as a whole and not piece-meal unless it involves the question of jurisdiction. For instance, if the valuation of the suit be such that it will oust the jurisdiction of the court before whom it was instituted, then in such cases ordinarily this issue should be tried as a preliminary issue to prevent unnecessary harassment to the litigants. But in all other matters it is always desirable that the cases should be tried as a whole, sothat it would not be remanded times without number from the appellate court to re-examine other matters left undecided. The learned Munsif took the correct view in not deciding issues 7 and 8 as preliminary issues. At any rate, it cannot be said that he exercised his jurisdiction either illegally or with material irregularity.

5. In the result, the Civil Revision isdismissed with costs. Hearing fee Rs.32/-. The learned Munsif is directed todispose of the suit within three monthsfrom today with intimation to this Court.


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