BHIKHABHAI KALIDAS Vs. VALI ISA PATEL AND CO A FIRM

JUDGEMENT

(1.) A suit filed by the present petitioner against the two defendants was held to be not maintain-able by the Court of Civil Judge, S. D. at Broach. Defendant No. 1 is a firm and defendant No. 2 was at ons time a partner of the firm. Defendant No. 2 was adjudged insolvent on 18-5-1956. On this ground an objection was taken in the written statement that the suit was not maintainable. In the written statement, an objection was also taken that the firm was itself dissolved upon the adjudication as insolvent of one of the partners and that therefore a suit against the firm did net lie. The learned Judge framed one preliminary issue, namely, whether the suit is not maintainable, and he held in the affirmative on that issue. He thereupon dismissed the suit. Hence this revision.

(2.) The framing of preliminary issues is referred to in Order 14, Rule 1 and Rule 2, Civil Procedure Code. Rule 1 of Order 14, C. P. Code classifies issues into two kinds (1) issues of fact, and (2) issues of law. It also mentions that at the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend, In other words, if the parties are at variance on a material proposition of law then an issue of law arises. If the parties are at variance with regard to a material proposition of fact, then an issue of fact arises. Then Rule 2 of Order 14, C. P. Code provides as follows:

(3.) So far as defendant No. 2 goes, the fact that he was adjudged insolvent on 135- 1956 was admitted. The plaintiffs allegations are to be found in the plaint before leading any evidence. In these circumstances, the question of law arose whether in view of the provisions of Section 17 of the Presidency-Towns Insolvency Act the suit as framed was maintainable as against defendant No. 2. In this case, the only section to be considered was Section 17 of the Presidency-Towns Insolvency Act, and the Court was right in framing the preliminary issue regarding the maintainability of the suit as against defendant No. 2.