MAHIMARANJAN GHOSH Vs. MADAN MOHAN KARMAKAR

JUDGEMENT

(1.) THIS Rule is directed against an order dated June 5, 1978, passed by the learned Munsif, Suri in Title Suit no, 47 of 1976. By the aforesaid impugned order Issue No. 4 was taken up as a preliminary issue and the said issue was about the non-joinder and/or mis-joinder of parties. It was held by the learned Judge that the heirs of one Digbasana Dasi are necessary parties to the suit and in the presence of those necessary parties the title and possession of the plaintiff should be decided, and the plaintiff was directed to take steps for imp leading the said necessary parties, namely, the heirs and legal representatives of Digbasana Dasi.

(2.) AGAINST the said adjudication made by the learned Munsif, this court was moved in revision and the instant Rule was issued. Mr. Dutta, learned Counsel appearing for the petitioner contended that after the amendment of the Code of Civil Procedure, 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 Munsif as preliminary issue. Mr. Dutta further contended that even before the amendment, the said issue could not have been decided on the footing that the said issue was an issue involving pure question of law because the adjudication involved in the said issue required consideration of various facts. For this contention Mr. Dutta referred to the decision of the Supreme Court made in the case of S. S. Khanna vs. F. J. Dillon, reported in A. I. R. 1964 S. C. 497. It was held by the Supreme Court on interpreting Order 14 Rule 2 of the Code of Civil Procedure (before amendment in 1976) that under Order 14 Rule 2 the jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court, the whole suit may be disposed of by deciding one the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Mr. Dutta also contended that after the amendment of the provisions of Order 14 Rule 2 of the Code of Civil Procedure, further limitations have been imposed and an issue involving question of law should be tried as preliminary issue only after the conditions indicated in sub-rule (2) of order 14 Rule 2 are fulfilled. It has been provided under the said sub-rule (2) of Order 14 Rule 2 that issue of law should be tried first if the issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for time being in force. Mr. Dutta thereafter referred to a decision of the Punjab and Haryana High Court made in the case of Hardwari Lal vs. Pohkar Mai reported in A. I. R. 1978 Punjab and Haryana High Court at page 230. In the said case the scope and import of the amendment of Order 14 Rule 2 of the Code of Civil Procedure, in particular sub-rule (2), were taken into consideration by the Punjab and Haryana High Court and it was held that after the amendment of Order 14 Rule 2 the scope of adjudication of some or more of the issues as preliminary issues for being tried on preferential basis has been considerably tapered. After the amendment the use of the words an issue of law only in the first part of the sub-rule (2) has to be given its due meaning and import in the context. Accordingly, Mr. Dutta contended that the impugned order was illegal and without jurisdiction and should be set aside,

(3.) MR. Roy, the learned Counsel appearing for the opposite party, firstly contended that one of the heirs of the said Digbasana was already on record and as such on the principle of doctrine of representation of the estate, the other heirs need not be impleaded and the suit can not fail in the absence of other heirs. In my view, the aforesaid contention of mr. Ray cannot be accepted. It is true that in appropriate cases where some of the heirs and legal representatives have been substituted with due diligence and one or two heirs had been left out, it should be held that the estate of the deceased was duly represented by the legal representatives of the deceased who were already brought on record after due diligence. In the instant case, the issue as to the defect of parties was adjudicated by the Court below and it was held that all the heirs and legal representatives are necessary parties. In such circumstances, it cannot be contended that as one or two heirs of such deceased party is or are on the record, the other necessary parties are, not required to be brought on record.