RATANLAL SALIGRAM Vs. NATHULAL PANKARJI NAMDEO

JUDGEMENT

(1.) This is an appeal from an order of remand under Order 43 Rule 1(u), of the Code of Civil Procedure. In the respondent's suit for the recovery of Rs. 612/-, the appellant inter alia pleaded repayment of the loan. On December 5, 1957, which was fixed for plaintiff's evidence, the defendant offered to the plaintiff to take Ganges water in his hand and swear that the defendant had not repaid the debt. Thereupon, the plaintiff threw a counter proposal offering the defendant to take Ganges water in his hand that he had nothing to pay to the plaintiff. The plaintiffs proposal was accepted by the defendant. The defendant then took the holy water in his hand before the Court and stated that he had repaid the entire debt due to the plaintiff and that he did not owe a single pie to him. The plaintiff accepted this statement and prayed for dismissal of his suit. The suit was accordingly dismissed leaving the parties to bear their own costs. However, feeling himself aggrieved by what !iad happened the plaintiff filed an appeal to the District Judge, Guna, on January 8, 1958. This appeal has been allowed on the ground that the trial Judge did not record the defendant's statement and no application was filed by the parties proposing and accepting the special oath. He has ordered a remand for disposal of the suit on merits, aggrieved by which the defendants have come here in appeal.

(2.) Shri Patankar raises a preliminary objection, that the judgment of the trial Judge dismissing the plaintiffs suit not being on a preliminary point, the order of remand does not fall within the ambit of Order 41 Rule 23 C. P. C. In my opinion, this objection must be overruled. Learned counsel argues that a preliminary point is one which does not relate to the merits of the case. In my opinion, such a narrow interpretation is unwarranted. A preliminary point is not restricted to points like limitation, jurisdiction and res judicata. A preliminary point may be either collateral to the merits which precludes their determination altogether or a point which, though relating to the merits, precludes their general determination. It is a point which if determined in favour of the plaintiff permits the progress of the suit, but when determined against him brings the suit to an end, leaving other issues undetermined. In this view I am supported by a number of decisions includ ing, Madhorao Ganesh v. Kesho Gajanan, AIR 1941 Nag 304, Mathura Prasad v. Sitaram, AIR 1940 Oudh 314 and Raman Nayar v. Krishnan Nain- budripad, ILR 45 Mad 900: (AIR 1922 Mad 505) (FB). In this case, the plaintiffs suit was dismissed on the short ground that the defendants took oath and stated that nothing was due by them and this rendered the determination of the merits of the case unnecessary.

(3.) It is urged by Shri Bajpai that the plaintiff's first appeal was not competent as it was against a consent decree. In my opinion, when a suit is decided on special oath, oath having been administered in pursuance of an agreement of the parties, the decree passed on such evidence cannot be said to be a consent decree although such evidence is conclusive. The first appeal was therefore, competent. See Laxmibai v. Bajirao, AIR 1938 Nag 64.