1985 Supreme(MP) 639

IN THE HIGH COURT OF MADHYA PRADESH
G. G. SOHANI, J.
State of M. P. - Appellant
Versus
M/S Manpal Patel & Sons - Respondent
C. R. No. 714 of 1982 (I)
Decided on : 05-11-1985

Headnote:(1) Civil Procedure Code, 1908 – O. 14, R. 2 – preliminary issues framed by agreement of both parties – no complaint can be heard that no such issues should hare been framed as preliminary.

       (2) Civil Procedure Code, 1908 – S. 96 and 115 – point can be agitated in appeal – no revision can be heard on such point.

        Short Note

       1. This revision petition is directed against the order passed by the learned District Judge in Civil Original Suit No. 28 A of 1980 giving his findings all issue No.4 relating to the validity of the contract between the plaintiffs and the Executive Engineer.

       2. The material facts giving rise to this revision petition, briefly are as follows :

       In a suit instituted by the plaintiffs against the defendant – applicants for grant of declaration and injunction, the plaintiffs averred that there was no valid contract between the parties. This allegation was not admitted by the defendants and issue No.4 was accordingly framed in that behalf. By its impugned order, the trial Court bas given its findings on issue No.4 against the applicants and hence, they have filed this revision.

       3. Held : The learned counsel far the State contended that issue No.4 should not have been treated as a preliminary issue by the trial court. From the proceeding of the trial Court dated 18 – 7 – 1981. I find that the learned counsel for the parties agreed that issues NO.4 and 5 be treated as preliminary issues. Under the circumstances, the applicants cannot now contend as the finding on issue No.4 bas gone against them, that the trial Court should not have framed issues No.4 as a preliminary issue.

       4. On the question as to whether the trial Court as justified in holding that the contract in question was void, I refrain from expressing any opinion because the finding on issue No.4 can be assailed by the applicants before the appellate Court. This Court, exercising powers under Section 115 C.P.C., would not be justified in revising or varying the impugned order as it is not disputed that even if the finding were given in favour of the applicants, the suit would not be finally disposed of It cannot also be held that the impugned order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the applicants, because the impugned order can always be assailed in an appeal in case the suit is decreed against the applicants.

       Revision dismissed.