DHRUBA CHARAN HOTA Vs. KANHU CHARAN HOTA

JUDGEMENT

(1.) IN this appeal the challenge is to the order passed by the learned Subordinate Judge, Jagatsinghpur. The appeal was directed, against the order passed by the learned Munsif, Jagatsinghpur adjudicating on a preliminary issue. He held that suit is barred by principles of res -judicata. The relevant issue is as follows:

(2.) BEFORE dealing with the respective claim, I shall deal with the question whether such an issue could have been adjudicated' as a preliminary issue. Resolution of this question rests on the scope and ambit of Order 14 Rule 2 of the Code of Civil Procedure, 1908 (in short the 'Code'). Sub -rule (1) thereof man dates that 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. Executions to the general mandate are contained in Sub -rule (2) which empowers a court to decide and dispose of a case or any part thereof on an issue of law only, where issue both of law and of fact arise in the same suit. The issue in question must relate to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. The question whether an issue relating to res judicata could be decided as a preliminary issue came up for consideration of this Court in the case of Bairagi Ch. Das v. Kartik Chandra Das and Ors. : 54 (1982) C.L.T. 298. It was held that issue relating to res judicata was not an issue of law and could not be decided as a preliminary issue. The view expressed in the said case was approved by. a Division Bench of this Court in the case of Madhabanada Ray and Anr. v. Spencer and Co. Ltd. : 64 (1987) C.L.T 560. In that, view of the matter, the order of the learned Munsif deciding the issue of res judicata as a preliminary issue is indefensible.

(3.) IN the circumstances while I agreeing with the operative part of the judgment to the effect that the suit was to be adjudicated afresh, I make it clear that a fresh adjudication has to be made on all issues involved in the suit. The observations of the learned Subordinate Judge were unnecessary.