JAGDAMBA INDUSTRIES Vs. KRISHAN PRATAP

JUDGEMENT

(1.) The present first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 31.3.1994 whereby the suit of the Appellant/Plaintiff for recovery has been dismissed on an application filed by the Respondent/Defendant under Order 7 Rule 11 Code of Code of Civil Procedure by treating the issue No. 1 as a preliminary issue and which issue was with regard to the bar to the suit under Section 69 of the Indian Partnership Act, 1932. The impugned judgment passed in the present case has resulted not only in stalling the suit for recovery filed against the Respondent/Defendant with respect to goods supplied, at the stage of a preliminary issue for about 21 years since the filing of the suit in the year 1989 but also in negating the mandate of the Legislature brought about by amending Order 14 Rule 2 of the Code of Civil Procedure, 1908 (CPC) in the year 1976 by Act 104 of 1996. The object of the amendment of 1976 was that the Court should decide all issues together and there should not be piecemeal decisions on separate issues, unless the issue is an issue of law pertaining either to the suit being barred by law or lack of jurisdiction of the Court. The issue to be tried as a preliminary issue has been so mandated to be decided only if no evidence is required to be led on the same and which becomes clear from the expression "issue of law" as appearing in Order 14 Rule 2 of CPC.

(2.) Order 14 Rule 2 of Code of Code of Civil Procedure and which reads as under :

(3.) Keeping in mind the aforesaid settled legal position let us turn to the facts of the present case. The Appellant/Plaintiff filed against the Respondent/Defendant on 22.7.1989 a suit for recovery of Rs. 98,000/- for goods (chemicals) supplied by the Appellant/Plaintiff to the Respondent/Defendant. In this suit, the Appellant/Plaintiff in para 1 stated that Plaintiff is a registered partnership firm under the Indian Partnership Act, 1932. In the written statement, the Defendant denied the factum of Plaintiff being registered as a partnership under the Indian Partnership Act, 1932. After pleadings were complete, the trial Court framed the following issues :