Smt. Pushpa Devi vs Sh. Daulat Ram

A.M. Khanwilkar, C.J.—Heard counsel for the parties. This appeal takes exception to the interlocutory order passed by the learned Single Judge of this Court dated 25.11.2011 in Civil Suit No. 30 of 2010. According to the appellant, the learned Single Judge has committed manifest error in rejecting the application, preferred by the appellant, praying for striking off the preliminary issue No. 1 framed by the Court. The said issue No. 1 framed by the Court, reads thus:-

Whether the suit is liable to be stayed in view of the pendency of the suit No. 146 of 2008 titled as Daulat Ram vs. Smt. Pushpa Devi which is pending in the court of Civil Judge, Kullu? OPD

The learned Single Judge has rejected the application, preferred by the appellant, on the ground that the issues were framed in presence of the parties for which reason, the application for striking off the above issue, cannot be entertained.

The appellant is under mistaken belief that the abovesaid issue is a preliminary issue within the meaning of Order 14 of the CPC (CPC). By its very nature, the issue as framed, in our opinion, is ascribable to the question to be decided by the trial Judge in terms of Section 10 of the CPC. Further, it is not as if upon answering that issue the claim of the parties will be finally decided one way or the other. Instead, by virtue of Section 10 of C.P.C., the Court is obliged to answer that issue at the threshold, to obviate multiplicity of proceedings. All questions in that behalf will have to be answered by the trial Judge in the first instance. Thus understood, no interference is warranted in this appeal.

Counsel for the appellant, however, placed reliance on the decision of the Division Bench of this Court in J.S. Tins Fabricators and Others Vs. U. Co. Bank, to contend that even against an interlocutory order, LPA is maintainable. In view of the opinion rendered by us hitherto, it is unnecessary to dilate on this decision. Reliance was also placed on the Full Bench decision in Prithvi Raj Jhingta and Another Vs. Gopal Singh and Another, . Even this decision will be of no avail in the fact situation of the present case, having found that the issue in question, is not ascribable to Order 14 Rule 1 of the CPC, but is a question to be answered by the trial Court at the threshold as per Section 10 of the CPC. Hence appeal is dismissed with the above observations.