SANTIPRIYA JENA Vs. RABATI NAYAK

JUDGEMENT

(1.) Plaintiffs are petitioners in this Civil Revision.

(2.) IN a suit for partition, trial Court having passed an order of abatement of the suit under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Act'). It was assailed in Civil Revision. Order was set aside and it was observed as follows : 'What the learned Munsif is required now to do is to examine the pleadings of the parties and in order to appreciate the substance thereof and find out whether complete relief in the facts of the case would be available to the plaintiffs before the consolidation authorities. If the learned Munsif comes to the conclusion that a specific prayer for setting aside the document In question is necessary to be made, he may call upon the plaintiffs to suitably amend the plaint and pay additional court -fee payable, and then decide as to whether the suit would be confined to such relief alone leaving the paryer for partition to be adjudicated by the Consolidation authorities or the suit is maintainable as a whole, before the Civil Court.' (See 71(1891) CLT 386 (Santipriya Jena and Anr. v. Rebati Naik and Ors.).

(3.) ORDER 14, Rule 2 C. P.C. reads as follows : '2. Court to pronounce judgment on all issues. - (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub -rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case of any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue'. Plain reading of the provision indicates that a suit is not to be disposed of on a preliminary issue and judgment shall be pronounced on all issues. However, in cases where Court is of opinion that a suit can be disposed of either fully or in part on an issue of law only when it relates to jurisdiction of the Court or a bar to suit created by any law, it may postpone settlement of issues. The discretion to postpone settlement of issue till after decision on preliminary issue indicates that after settlement of issues, judgment is to be passed on all issues including the maintainability of the suit on question of jurisdiction or on question of bar of suit created by any law and discretion under Order 14, Rule 2 CPC is not to be exercised.