- (1.) By this Revision Petition, the petitioner-defendant has challenged the order of the trial Court dated 7th March, 1989 declining his prayer to treat Issue Nos. 4, 6 and 11-A as preliminary issues.
(2.) Succinctly, the facts relevant to determine the questions raised in this petition are, that the plaintiffs filed a suit on 7th April, 1982 for the recovery of Rs. 2,91,920.87 paise. The suit was contested on various grounds and one of the preliminary objection raised was, the suit is not maintainable as earlier a suit was filed by the plaintiffs on the same cause of action, which was withdrawn without obtaining permission of the Court to file a fresh one on the same cause of action. On the pleadings of the parties, the following issues were framed by the trial Court on two different dates : "(1) Whether defendant No. 1 purchased paddy from the plaintiffs as alleged in para 4 of the plaint ? OPP (2) Whether the plaintiff is entitled to recover the amount of labour charges and interest etc., as alleged in para 5 of the plaint ? OPP (3) To what amount the plaintiff is entitled to recover from the defendants ? OPP (4) Whether the suit is barred by the provisions of Order 23 Rule 1 C.P.C. ? OPD (5) Whether the suit is barred by principle of res judicata ? OPD (6) Whether the suit is barred by provisions of Order 23, Rule 1 of the C.P.C. ? OPD (7) Whether the plaintiffs are the sole proprietors of the firm M/s. Mansha Ram Tale Ram, as claimed ? OPP (8) Whether the aforesaid firm is a partnership firm, and whether the suit is not maintainable in the present form ? OPD (9) Whether the plaint has not been properly verified ? If so to what effect ? OPD (10) Whether the suit is bad for mis-joinder of necessary parties ? If so to what effect ? OPD (11) Whether defendant No. 1 is the sole proprietary concern of Smt. Dharam Kaur defendant No. 2 as alleged in the written statement ? If so to what effect ? OPD (11-A) Whether the suit of the plaintiff is barred by the provisions of Section 230 of the Indian Contract Act ? OPD (12) Relief."
(3.) Originally the issues were framed on 14th June, 1983 except additional Issue No. 11-A which was framed on 16th December, 1988. The plaintiffs led their evidence and the suit was fixed for defendant's evidence, which as per the observations of the trial Court in the impugned order, has not been produced in spite of numerous adjournments. It was after about seven years of the institution of the suit that the petitioners preferred an application on 2nd February, 1989 under Order 14 Rule 2 of the Code of Civil Procedure requesting the Court to treat Issue Nos. 4, 6 and 11-A as the preliminary issues and to decide them first.;