Law: Civil Procedure Code (V of 1908)

Section: O.XIV,R.2

Civil Procedure Code (V of 1908), O. XIV, R. 2-Preliminary objec­tion may relate to entire suit and may indirectly touch the merits of case but must not involve the direct decision of a question which is an integral part of the merits of case-Finding of lower Court on preliminary issue not based on such preliminary objection set aside. A preliminary objection almost invariably relates to the entire suit. Secondly, while a preliminary objection may touch the merits of the case in a collateral or indirect manner, it must not involve the direct decision of a question which is an integral part of the merits of the case. Now, in the present case, there can be no doubt that the right of the plaintiff to claim possession of Field No. 2174, despite the final failure of his attempts to eject the defendants as tenants of this field under the Revenue Courts decree, is clearly a question relating to the merits of the case. The proper course, in my opinion, is to set aside the finding recorded by the learned Senior Subordinate judge in regard to this field and to make a direction that the issue in question should be decided along with all other issues arising out of the case on the merits, at the close of the trial. 39 Ind. Cas. 954 and I L R 17 Lah. 38 ref. to. ORDER CORNELIUS, J.-This petition for revision of an interim order, dated the 8th June 1948, made by the Senior Subordinate Judge of Montgomery in a suit brought by Tahir Shah, Taqi Shah and Mst. Jalal Bibi against Kanda and others, has been brought by the plaintiffs. Their suit was for possession of certain land situated in village Kaure Shah Zerin, including field No. 2174. The allegation for the plaintiffs were that they had obtained a decree for ejectment of the defendants from the suit land on the 19th April 1938 from the Court of the Assistant Collector 1st Grade, Montgomery, the condition of the decree being that the decree-holder should pay Rs. 2,003 as compensation to the defendants. On appeal, the amount of the compensation was increased by the Collector to Rs. 2,638-5-0. The matter was taken up before the Commissioner and the Financial Commissioner, but the Collectors order was not altered, and the…

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