DIPAK KUMAR BHATTACHARJEE Vs. ARCHANA SAHA

JUDGEMENT

(1.) In this appeal, the Order No. 27 dated 12.2.2002 passed by Shri A. Mukherjee learned Judge, 10th Bench, City Civil Court Calcutta, in title Suit No. 1398 of 1998 is assailed by the appellants. The appellants herein had filed the aforesaid suit for declaration that the sale deed executed by the defendant No. 1 in respect of the suit premised is null and void, for a further declaration that the sale deed dated 29.11.1997 be delivered up and cancelled and permanent injunction. By the impugned order, issue No. 1 was taken up as preliminary issue by the learned Trial Judge on the date of peremptory hearing of the case and the said issue was about the maintainability of the suit. The learned Trial Judge after hearing the learned lawyer appearing for the parties had dismissed the aforesaid suit on the ground that it was not maintainable.

(2.) Even though the learned Counsel for the respondents-has not cared to put in appearance on the date of hearing the instant appeal before this Court despite service, we have heard the learned Counsel appearing for the appellants and gone through the records carefully.

(3.) Learned Counsel for the appellants contended that after the amendment of Civil Procedure Code, the provision of Order 14 Rule 2 has undergone a change and under the amended provision of Order 14 Rule 2 Sub- rule(2), the said issue could not have been decided by the learned Trial Judge as preliminary issue when the said issue was an issue involving mixed question of fact and law required to be decided on merits along with other issues in the suit. Learned Counsel for the appellants also contended that after the amendment of the provision of Order 14 Rule 2 of the Code of Civil Procedure, further limitation have been imposed and an issue involving question of law should be tried as preliminary issue only after the condition indicated in Sub-rule (2) of Order 14 of Rule 2 are fulfilled. Placing reliance on the principles laid down by the Full Bench of Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai & Ors., AIR 1960 Madras page 1, learned Counsel for the appellants lastly contended that the learned Trial Court erred in holding that in view of Section 34 of the Specific Relief Act, the appellants not being a party to the deed is precluded from making a decree for cancellation of sale deed executed by and between the respondent Nos. 1 and 2. Learned Counsel laid stress on the observations of the aforesaid Full Bench decision in paragraphs 13,14 and 15 which are quoted herein below: -