2008 (1) TMI 980

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....s by the 3rs defendant challenging the judgement and decree dated 21.12.2006 passed by the Civil Judge (Senior Divn.), Hanagal, decreeing the suit O.S. 728/02 filed by the respondent herein. 2. The brief facts necessary for consideration are: a) Plaintiff who is partner of a rice industry called Kashmiri Rice Industries established at Hanagal, had entered into a contract in the year 2001 for s....

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.... the trial court committed an error in trying issue nos.2 and 3 as preliminary issue, without recording any evidence and without giving any opportunity to the defendant to contest the suit. It is to be noted that issue nos.2 and 3 read as follows: Issue no.2: Whether the suit is hit by the provisions of section 69 of the Indian Partnership Act as plaintiff is an unregistered firm? Issue no.3: ....

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....5. In our view, it is not necessary when there was sufficient documentary evidence acceptable to record evidence in this regard as long as the defendant has not rebutted it or challenged the same either by way of revision or first appeal before the higher forum. No doubt it is contended that even the findings on the preliminary issue can be challenged by the appellant after the final judgement and....