Orissa High Court
Ram Saraf vs Mani Dei And Anr. on 4 April, 1969
Equivalent citations: AIR1969ORI295, AIR 1969 ORISSA 295, 35 CUTLT 602 ILR (1970) CUT 152, ILR (1970) CUT 152
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, so that 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 is dismissed with costs. Hearing fee Rs.
32/-. The learned Munsif is directed to dispose of the suit within three months from today with intimation to this Court.