DWARIKA PRASAD Vs. RAM KISHAN

JUDGEMENT

(1.) THIS is an application under Order 47 Rule 1 of the Code of Civil Procedure (herein after referred to as 'the Code') for review of the order dated 24-1-93 passed in Second Appeal No. 357/92. The learned Single Judge on 24-1-94 passed the following order:-

(2.) SEEKING review of the aforesaid order, it is submitted by Mr. Umesh Shrivastava that the learned Single Judge has committed an error by holding that the plea relating to Order 2 Rule 2 had not been taken in the written statement nor was raised before the Courts below, though as an actual fact such a plea was taken. Mr. Shrivastava has drawn our attention to Paragraph 18 of the written statement. On a perusal of the same, it is not clear that the plea was advanced in a proper manner though it was stated that an earlier suit was instituted for partition.

(3.) THE sole question that arises for consideration is whether a plea relating to Order 2 Rule 2 should be entertained, on mere asking. Mr. Shrivastava, has placed reliance on the decision rendered in the case of Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke and Ors. (AIR 1954 SC 352 ). We have carefully perused the said judgment. We are of the considered view that the same is not applicable to the facts of the case and is distinguishable.