- (1.) THE present appeal has been filed by the appellant-plaintiff under Section 96 of the CPC challenging the judgment and decree dated 23.2.11 passed by the Addl. District Judge No.3, Ajmer (hereinafter referred to as 'the trial court') in Civl Suit NO. 173/10 (84/06, 254/09) whereby the trial court has dismissed the suit of the appellant only on the ground of non-joinder of necessary parties.
(2.) WITH the consent of the learned counsel for the parties, the appeal was heard finally at the admission stage. The short facts giving rise to the present appeal are that the present appellant-plaintiff had filed the suit against the respondents-original defendants who were her brothers, seeking partition of the property in question. The said suit was resisted by the respondents-defendants. From the pleadings of the parties, the trial court framed as many as 6 issues, however without giving any finding on any of the other issues, the trial court dismissed the suit on issue No.5 alone, on the ground that the plaintiff had not joined her sisters as the party-defendants in the suit. Being aggrieved by the said judgment and decree, the appellant-plaintiff has preferred the present appeal. The learned counsel for the appellant has submitted that the trial court could not have dismissed the suit of the plaintiff only on one issue without giving opportunity of leading evidence on the other issues or without giving any finding on the other issues. However, the learned counsel for the respondents has submitted that the false suit was filed by the appellant-plaintiff to harass the defendants and earlier also she had filed one suit seeking injunction against the defendants, which was dismissed by the court. He also submitted that the plaintiff is in the habit of filing false suits against the defendants and in the instant appeal also she has not prayed for joining the sisters as the party-defendants in the suit. According to him the trial court has rightly dismissed her suit. In order to appreciate the submissions made by the learned counsel for the parties it is necessary to reproduce the provisions contained in Order XIV Rule 2 of CPC which reads as under :- "XIV(2) Court to pronounce judgment on all issues.--(1) 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. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case o any part thereof may be disposed of on an issue of law only, it may true that issue first if that issue relates to-- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
(3.) FROM the bare reading of the said provision it clearly transpires that though the case may be disposed of on a preliminary issue, the court has to pronounce judgment on all issues, except where the court is of the opinion that the case or any part thereof could be disposed of on the issue of law only, it may try that issue first and postpone the settlement on other issues. It is also necessary that such issue of law must relate to the issue of jurisdiction of the court or of a bar to the suit created by any law for the time being in force. From the impugned judgment and decree it clearly transpires that the trial court has neither recorded any opinion that the case was required to be disposed of on the issue of law as contemplated in the above stated provision, or that the other issues shall be postponed for settlement till the said issue was determined. In the instant case the trial court has after framing the issues has disposed of the entire case of the plaintiff only on the issue No.5 on the ground that the plaintiff had not impleaded her sisters as party-defendants in the suit. Such an issue being not an issue of law and the said issue also did not pertain to the question of jurisdiction or any bar created by any law, the trial court could not have disposed of the entire suit only by deciding issue No.5. The trial court since had framed issues, it was expected to give findings on all the issues after affording the parties reasonable opportunity to lead the evidence. If the parties did not lead the evidence in support of the pleadings, the court was certainly at the liberty to decide the case, however in that case also the court had to give findings on all the issues. Since that has not been done by the trial court, the case deserves to be remanded to the trial court for deciding afresh in accordance with law. For the reasons stated above, the impugned judgment and decree passed by the trial court deserves to be set aside and is accordingly set aside. The case is remanded to the trial court for deciding afresh in accordance with law. The appeal stands allowed accordingly. ;