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1979 DIGILAW 128 (ALL)

Narsingh Prasad v. Paras Nath

1979-01-31

H.N.AGARWAL

body1979
JUDGMENT H.N. Agarwal, Member. - This is a revision against the order dated July 14, 1976 passed by the Addl. Commissioner, Allahabad Division, dismissing the revision filed against the order dated July 2, 1976 passed by SDO Soraon, district Allahabad in case No. 8 of 1973-74, under Section 209, UPZA and LR Act. 2. I have heard the learned counsels for both the parties and gone through the record. 3. Opposite Party No. 1, Paras Nath had filed a suit under Section 209, UPZA and LR act against the defendant-revisionists seeking their ejectment from certain land. The trial court had framed 5 issues. Issue No. 4 was; whether this court has jurisdiction to try the case ? 4. The defendant-revisionists had moved an application praying that this issue should be decided as a preliminary issue. The trial court has, however, rejected this application and observed that this is a question which can be decided after leading evidence and the case thereupon can be decided on merits. This order has been challenged in the present revision. 5. Order 14, Rule 2, CPC reads as follows :- "2. Court to pronounce judgment on all issues, (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." The general practice which is healthy one is that an issue relating to the jurisdiction of the court is decided as a preliminary issue and is not left to be decided till the very end of the case. The trial court has thus, acted illegally and with material irregularity in the exercise of jurisdiction in refusing to treat the issue relating to jurisdiction as a preliminary issue. The trial court has thus, acted illegally and with material irregularity in the exercise of jurisdiction in refusing to treat the issue relating to jurisdiction as a preliminary issue. Supposing the trial court comes to the finding that it has no jurisdiction to try the case, all other proceedings before the court would be unnecessary and infructuous. The learned counsel for the revisionist has rightly invited attention to the ruling in 1978 RD 72 in this connection. Where a court wrongly refused to treat an issue relating to jurisdiction as a preliminary issue, such an order comes within the purview of the revisional powers of the Board of Revenue. 6. The result is that I allow the revision, set aside the impugned order and direct that the trial court shall first decide issue No. 4 as a preliminary issue.