[1943] EACA 78

## APPELLATE CIVIL

## BEFORE BARTLEY, J.

CHHAGANLAL MORARJI, Appellant (Original Defendant)

v.

## SHIVJI KARSAN PATEL, Respondent (Original Plaintiff)

## Civil Appeal No. 8 of 1943

Civil Procedure—Appeal against decision of Magistrate on preliminary point of law raised in pleadings—Right of appeal—Civil Procedure Rules Order 6 Rules 27 and 28; Order 40 Rule 1 (2).

The facts appear from the judgment.

Held (2-9-43).—That an appeal lay with leave of the Court against a decision of a magistrate on a preliminary point of law raised in the pleadings and heard and disposed of under Order 6, Rule 27.

Khanna for the appellant.

Kapila for the respondent.

ORDER.-Mr. Kapila raised a preliminary point in this appeal which is against what the learned 1st Class Subordinate Judge termed a "ruling" deciding a preliminary point of law in which he held that the suit was not barred under section 7 of the Civil Procedure Ordinance, 1937, by reason of res judicata. Mr. Kapila's submission was that this decision was merely a ruling and was not an order within the meaning of the definition of that term in section 2 of the Ordinance. It was further submitted that the learned Subordinate Judge had no power to draw up an order on his ruling or to grant leave to appeal under Order 40 Rule 1 (2) as he purported to do. In support of his argument Mr. Kapila cited Dipchand Panachand v. The Kenya General Stores, 20 K. L. R. 33, in which Thacker, J., held that an appeal against a ruling by a magistrate given at the close of the plaintiff's case that there was a case to answer was not in any sense an order and that the magistrate should not have given leave to appeal against the ruling as it was not appealable.

This case can be clearly distinguished from the case cited. The case now under consideration comes under Order 6 Rule 27 by virtue of which a party is entitled to raise by his pleadings any point of law and the point so raised may, by the consent of the parties or by order of the Court, be set down for hearing and disposal of at any time before the hearing.

In my opinion it is quite clear that for the point to be disposed of the Court must make an order, indeed Rule 28 of the same rule seems to establish this beyond doubt. As I read the so called ruling what it amounted to under Rule 28 was that the decision of the point of law disposed of a ground of defence and the Court made what it considered to be the just order thereon. That order is clearly appealable with leave of the Court.

I accordingly disallow the preliminary objection. Question of costs deferred.