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2002 DIGILAW 267 (JK)

J&K Bank Ltd. v. Mohd. Farooq Rather

2002-08-20

R.C.GANDHI

body2002
1. This Revision Petition has been preferred against the order dated 01.12.2001 passed by the learned Illrd Sub-Ordinate Judge (Forest Magistrate), Srinagar, whereby, in a suit he has disposed of the following six issues as preliminary issues: 1. Whether the suit of the plaintiffs is not maintneable? OPD 2. Whether the plaintiffs have no locus-standi to file the suit? OPD 3. Whether plaintiffs have no cause of action? OPD 4. Whether the plaintiffs right to institute the suit is barred by estoppel, if yes, How? OPD 5. Whether the plaintiffs is hit by mis-joinder and non-joinder of necessary parties? OPD 6. Whether the suit has not properly been valued and requisite court fee has not been paid? OPD 2. The petitioner has challenged the impugned order on the ground that the trial court has occasioned failure of justice by deciding these issues as preliminary issues, which could not have been treated as preliminary issues in view of the mandate of order 14 Rule 2 of the 9 OPC. 3. Heard the learned counsel for the parties. Perused the impugned order and the memorandum of the petition. The learned counsel for the respondents in support of the impugned order has submitted that the issues have been decided by the court in accordance with law and that the petitioner cannot challenge it as this stage as it open to him take it as a ground in the appeal. 4. Undoubtedly a right is available to the party against whom issue has been decided to challenge it by setting up a ground in an appeal. Notwithstanding that, if the decision of an issue causes failure of justice or the court decides if as a preliminary issue, the petitioner cannot be denied the remedy if available to him to challenge it before the final adjudication of the suit. 5. The learned counsel for the petitioner has submitted that the issues decided by the court is an exercise of jurisdiction in breach of the mandate of Order 14 Rule 2 (2) CPC. His submission is that these issues could not be even treated as preliminary issues and the trial court should not have decided the suit in piecemeal. 5. The learned counsel for the petitioner has submitted that the issues decided by the court is an exercise of jurisdiction in breach of the mandate of Order 14 Rule 2 (2) CPC. His submission is that these issues could not be even treated as preliminary issues and the trial court should not have decided the suit in piecemeal. Order 14 Rule 2 Sub Rule 1 & 2 of CPC is reproduced for convenience and reads thus;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, of 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 untill after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 6. The intent of Rule 2 is to clothe the court with the jurisdiction to pronounce judgment on all issues that the case may be disposed of on a preliminary issue. The court has to pronounce judgment on all the issues with the exception contained in Sub-Rule 2. The exception confers the discretion on the court that if the court is of the opinion that the case or any part thereof can be disposed of on an issue of law alone, it may try that issue in the first instance. Sub-Rule 2 relaxes the mandate of Rule 2 to this extent. The issue contemplated to be tried in terms of sub Rule 2 must relate either to the jurisdiction of the court or the bar to the suit created by law. If the court decides the issue as a preliminary issue which is not relating to law in that event decision of such a preliminary issue shall be a breach of the mandate contained in Rule 2 Order 14 CPC. If the court decides the issue as a preliminary issue which is not relating to law in that event decision of such a preliminary issue shall be a breach of the mandate contained in Rule 2 Order 14 CPC. Where the suit can be disposed of by deciding the preliminary issue in terms of Sub-Rule 2, the court need not to defer the framing of all the issues but may decide the preliminary issues first. The trial court has decided the issue wide impugned order which are mixed questions of facts and law and could not have been treated as preliminary issues. The impugned order deciding the issues which could not have been treated as preliminary issues cannot sustain the test and mandate of law contained in Sub Rule 2. The order impugned, therefore, cannot be maintained being passed by illegal exercise of jurisdiction and is, accordingly, quashed. The parties to appear before the trial court on 06.09.2002.