PRADUMAN KUMAR Vs. GIRDHARI SINGH

JUDGEMENT

(1.) THIS is a defendant's revision application against an order of the Additional Civil judge, Jaipur City whereby he decided to dispose of issues Nos. 4, 7, 8 and 10 along with other issues framed in the case after the evidence had been recorded.

(2.) IT appears that plaintiff Girdhari-singh instituted the present suit on 29th august, 1967, for specific performance of contract of sale of a house, in the alternative, damages to the extent of Rs. 2500 and for cancellation of the sale deed executed in favour of non-petitioner No. 2 on the basis of an agreement of sale entered into between him and the petitioner on 5-10-1963. The petitioner denied the plaint allegations as also the agreement set up by the plaintiff. The learned Additional Civil Judge framed eleven issues in the suit and ordered that arguments will be heard on issues Nos. 4, 5, 7, 8 and 10 which in his opinion were preliminary issues. However, on the date on which arguments were to be heard, the learned Judge changed his opinion because the decision of this Court in chhinga Ram v. Nihal Singh, 1963 Raj LW 101 = (AIR 1963 Raj 100) was brought to his notice. On behalf of the petitioner another decision of this Court in Prithvi raj v. Munnalal, AIR 1957 Raj 112, was shown to the learned Judge, but he preferred to follow the decision relied upon by the plaintiff for the reason that it was a later decision. Accordingly, he passed the order against which the present revision application has been preferred.

(3.) IT is contended on behalf of the petitioner that once the learned Additional Civil judge had decided to determine the aforesaid issues as preliminary issues, he ought not to have reconsidered his previous order. It is also contended that the learned Additional Civil Judge ought to have followed the Division Bench decision in preference to the decision of a Single Judge even though it happened to be later in time. Learned counsel has invited my attention to Order 14, Rule2 of the Code of Civil Procedure which according to the learned counsel is of mandatory nature and lays down that in a case where the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it will postpone the settlement of issues of fact until after the issues of law have been determined. Reliance is placed on AIR 1957 Raj 112, Gulabchand v. Kishanlal, (1951) 2 Raj LW 119 and Premier Automobiles Ltd, Bombay v. Laxmi Motors Co. , Jodhpur, AIR 1960 Raj 208. The learned Additional Civil Judge has relied upon Chhinga Ram's case, 1963 Raj LW 101 = (AIR 1963 Raj 100) in which following observations were made by the learned Judge: