MAHANT SHANTA NAND GIR Vs. BASUDEVA NAND GIR

JUDGEMENT

(1.) This is an application in revision filed by the defendant against an order of the Court below refusing to take up the case piecemeal and decide a question of law raised by the defendant. The suit was of a declaratory nature and challenged a previous Civil Court decree principally on the ground of fraud. Before the settlement of the issues the defendant applied on 18 April 1933, praying that the question of the sufficiency of the court-fees might be gone into first and the remaining issues in the case be decided later. The Court framed issues on 2nd March 1933, and decided the question of court-fee on 27 May 1933. The question of court-fee was somehow reopened and it was again decided in favour of the plaintiff on 19 August 1933. The Court had fixed 1 February 1934, as the date for the hearing of the evidence. On 4 December 1933, the defendant applied to the Court that all the legal issues including the one relating to the maintainability of the suit be decided before the evidence is commenced. It is not explicable why the defendant did not make this request at the time when issues were framed on 2 March, 1933. The Court below has summarily rejected this prayer without expressing any opinion whether any of these questions of law would be sufficient to dispose of the case.

(2.) The order is obviously an interlocutory order and a preliminary objection is taken to the hearing of this revision. There is apparently an irregularity in the Court not expressing any opinion whether the case could or could not be disposed of on the questions of law, but the defendant could not claim as of right that the Court should decide these questions of law in the first instance, as it was a matter for the Court to take up only when it was of the opinion that the suit could be disposed of on the issues of law only under Order 14, Rule 2. In such a matter although the attention of the Court may be invited to the issues of law that arise in the case the Court proceeds suo motu and takes up issues of law first only when it is of the opinion that the suit can be disposed of on such issues only. The order passed by the Court below is therefore not the final order in the case. It is still open to the Court if satisfied at a later stage in the suit that it can be disposed of on a question of law only, to take up such question of law and decide it.

(3.) The learned Counsel for the applicant relies strongly on the case of Udmiram Ram Sarup V/s. Ghasiram Sukhan Lal 1933 All. 753. That case no doubt supports his contention. But the position has been recently reconsidered in the Full Bench case of Gupta & Co. V/s. Kirpa Ram Brothers 1934 All. 620, in which it has been remarked that orders passed by a Court from time to time during the trial of a suit cannot always be regarded as so many separate cases decided by the Court within the meaning of Section 115, Civil P.C., and that it is only where the case is a proceeding which can be considered separate and distinct and is finally disposed of by an order which terminates it that it can be considered to be a case decided, although the suit has not in one sense been completely disposed of. In view of this more restricted view pronounced by the Full Bench that case is no longer good law. It is impossible to regard the refusal of the Court below to take up the question of law first as any separate or distinct proceeding initiated by any application provided for in the Code which has been terminated by its refusal and amounts to a case having been decided. As pointed out above it is still open to the Court if satisfied at a late stage that any issue of law would dispose of the case completely to bake up such question of law and decide it first. We are therefore of opinion that no revision lies. The application is dismissed with costs.