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Debendra NaraIn Roy Vs. Jogendra NaraIn Deb and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal559,145Ind.Cas.446
AppellantDebendra NaraIn Roy
RespondentJogendra NaraIn Deb and ors.
Excerpt:
- .....was the application made after the date fixed for first hearing, for the trial of some of the issues raised in a suit as issues of law, without taking evidence. the question arising for consideration must therefore be dealt with quite irrespective of the provisions of the code of civil procedure to which reference has been made above.3. the trial of a suit piecemeal has sometimes been condemned by their lordships of the judicial committee of the privy council, on the ground of inconvenience and costs involved in such procedure, on the facts and circumstances of the particular cases before them; but it is impossible to lay down a general rule in this behalf. in the case before us regard being had to the history of the litigation and in view of the line of defence taken after the.....
Judgment:

Guha, J.

1. These rules are directed against an order passed by the Subordinate Judge, First Court, 24-Parganas, on 30th January, 1932, in Title Suit Nos. 84 and 164 of 1930, holding that the additional issues 14 to 20 raised in suit No. 84, and the additional issue raised in Suit No. 164 which is in the same terms as issue 15 in Suit No. 84, described as 'issues of law' may be tried first, and also that the suits 'may be disposed of on the issues of law only.'

2. The history of the litigation has been set out in very great detail in the application to this Court on which these rules were granted, as also in the affidavits filed by the parties in this Court. The suits out of which these rules have arisen relate to the title of the petitioner as claimed by him to the Bijni Raj in Assam, and to a certain item of property belonging to the Raj which is in Bengal. In view of the passing of an enactment known as the Bijai Succession Act, 1931, (Assam Act 2 of 1931), which received the assent of the Governor of Assam on 27th March 1931, and of the Governor-General of India, on 9th May 1931; and was published in the Assam Gazette on 20th May 1931, additional written statements were filed in the suits and additional issues to which reference has been made above were raised, at the instance of the parties concerned. The Court was then asked to take up these issues for decision as preliminary issues, and the application in this behalf was opposed by the petitioner in this Court, as also by Purnendra Narain Deb and Surendra Narain Deb, plaintiffs 1 and 2 in Suit No. 164 of 1930. The objection raised in this behalf has been overruled primarily on the ground that Rule 2, Order 14, and Rule 3, of Order 15, Civil P.C., gave power to the trial Court to hold piecemeal trial, and that power should be exercised in this case. It has to be noticed that Order 14, Rule 2 refers to the stage of settlement of issue and Order 15, Rule 3 contains provisions similar to those contained in Order 14, Rule 2 for disposal of a suit, at the first hearing. These provisions appear to have no application to a case like the one before us, where there was the application made after the date fixed for first hearing, for the trial of some of the issues raised in a suit as issues of law, without taking evidence. The question arising for consideration must therefore be dealt with quite irrespective of the provisions of the Code of Civil Procedure to which reference has been made above.

3. The trial of a suit piecemeal has sometimes been condemned by their Lordships of the Judicial Committee of the Privy Council, on the ground of inconvenience and costs involved in such procedure, on the facts and circumstances of the particular cases before them; but it is impossible to lay down a general rule in this behalf. In the case before us regard being had to the history of the litigation and in view of the line of defence taken after the Bijni Succession Act came into operation, it could not be successfully contended that the trial Court was not to be permitted to exercise its discretion in the matter of procedure to be followed in the trial of issues raised by the parties. It seems to us however that it would not be right for the trial Court to treat the additional issues raised in the suits as issues of law in the sense that they are pure questions of law, as distinguished from mixed questions of fact and law; nor was the Court below right in observing that the suits 'may be disposed of' on the issues of law only if the observation indicate that the other issues raised in the suit could be treated as non-existent.

4. In our judgment, the order of the Court below should be varied; and we direct the Subordinate Judge to take up the additional issues 14 to 20 in Suit No. 84 and the additional issues raised in Suit No. 164, for trial. The parties are to be called upon to adduce evidence bearing upon those issues, if the Subordinate Judge considers that evidence is necessary for the determination of those issues. In the event of these issues being decided against the plaintiffs, the suit will be dismissed; on the other hand on their being decided in favour of the plaintiffs in the suit, the trial Court will take up the issues raised in the suits before the additional issues were framed, and proceed to deal with them;and dispose of the suits in accordance with law. We make this order in the exercise of our revisional jurisdiction and in the exercise of the power of superintendence vested in this Court, as we entertain no doubt that such an order is called for, in order to meet the ends of justice in the cases before this Court. We make no order as to costs in these rules. Let the records be sent down as soon as possible.

M.G. Ghose, J.

5. I agree.


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