MARY Vs. MATHEW JOSEPH

JUDGEMENT

(1.) Defendants 2 and 4 in O.S. No. 161 of 1987 are the revision petitioners. They filed LA. 1329 of 1988 stating that the maintainability of the suit has to be heard as preliminary issue. Additional issue No. 4 is as to the maintainability of the suit. Lower court found that the said issue concerns a fixed question of law and fact which requires evidence and hence has to be tried along with the other issues. The said order is under challenge in the Civil Revision Petition.

(2.) Suit for declaration of the plaintiffs right of easement of way over the plaint B schedule property, for a mandatory injunction to remove the obstruction created by defendants 2 and 4 in the B schedule property, and for a prohibitory injunction against the defendants from obstructing the plaintiff plying lorry through the B schedule property. One of the contentions of defendants 2 and 4 in their written statement was, after document dated 18-6-1983, plaintiff has no right or title over the plaint A schedule property, that one Ouseph Ouseph had instituted O.S. 711 of 1971 in which the plaintiffs father was the first defendant and that the plaintiffs contentions are barred by the decision in the said case. Additional issue No. 4 was as to the maintainability of the suit and additional issue No. 6 was whether the contention of the plaintiff is barred by estoppel by reason of the decision in O.S. 711 of 1971.

(3.) The question whether an issue is to be tried as a preliminary issue has to be decided as per the provision in O.14 R.2 CPC. Sub-rule (1) of R.2 of O.14 enjoins that, the court shall pronounce judgment on all issues subject to the provisions in sub-rule (2) thereof. Therefore, the general Rule is that the court should pronounce judgment on all issues. R.2 of O.14 CPC reads: