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Himachal Pradesh High Court · body

2002 DIGILAW 76 (HP)

JAI KUMAR v. YADAV NANDAN MALHOTRA

2002-03-26

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J. (Oral) :- This revision petition under Section 115 of the Code of Civil Procedure (here-after referred to as the Code) as directed against the order dated 14.1.2002 passed by the learned sub Judge (3). Mandi whereby a issue (issue No.11). being a preliminary issue, has been ordered to be tried first and the onus of proof of the issue though on defendant/respondent No.l (here-after referred to as the defendant No.l). the petitioner/plaintiff (here-after referred to as the plaintiff) has been directed to lead evidence in support of the issue. 2. The brief and admitted facts are that the plaintiff has instituted a suit for declaration and injunction against the respondents/defendants which is pending disposal in the Court of the learned sub Judge (3), Mandi. The suit is being contested by the respondents/defendants and defendant No.l in his written statement has also raised an objection that the said Court has no jurisdiction to entertain and try the suit. On the basis of the said suit, inter alia, an issue regarding jurisdiction of the trial Court to entertain and try the suit has also been framed which has been numbered as Issue No. 11 and the onus to prove the said issue has been placed on defendant No.l. The learned trial Judge vide the impugned order, directed that the said issue should be decided as preliminary issue as the findings thereon would go to the root of the case and directed the plaintiff to lead evidence in support of the issue. 3. Being aggrieved by the said order, the plaintiff has preferred the present revision petition on the grounds that the said issue being the mixed question of law and fact could not be treated as a preliminary issue and in any case, the plaintiff could not have been asked to lead evidence to prove the said issue the. onus of proof whereof was on defendat No. 1. 4. I have heard the learned counsel for the parties and have also gone through the material placed on the record. 5. Order 14 Rule 1 of the code contemplates two kinds of issues, viz. (i) issues of fact and (ii) issues of law. onus of proof whereof was on defendat No. 1. 4. I have heard the learned counsel for the parties and have also gone through the material placed on the record. 5. Order 14 Rule 1 of the code contemplates two kinds of issues, viz. (i) issues of fact and (ii) issues of law. Rule 2 (2) of Order 14 of the Code gives discretion to the trial Court to first decide an issue of law-relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, if the Court is of the opinion that the case or any part thereof may be disposed of on such issue. Though rule 2 supra does not make it obligatory for the Court to decide issue relating to jurisdiction or legal bar to suit as preliminary issues, yet invest the court with a discretion to decide such issue as a preliminary issue, if the case or any part thereof can be disposed of on the basis of the findings which may be given on such issue. 6. In the case in hand, defendant No.1 had taken a specific plea; denying the jurisdiction of the trial Court to entertain and try the suit. The trial Court had exercised its jurisdiction in treating the issue regarding its jurisdiction to entertain and try the suit as a preliminary issue and there is no compelling reason to interfere with the discretion exercised by the trial Court. 7. It was contended by the learned counsel for/the plaintiff that the issue ordered to be tried as a preliminary issue, is not an issue of law only but involves mixed questions of law and fact therefore, could not have been ordered to be tried as a preliminary issue and ought to have been decided along with other issues on merits as it involved leading of evidence. 8. I have given due consideration to the submissions made by the learned counsel for the plaintiff and am of the view that the contention cannot be upheld. 8. I have given due consideration to the submissions made by the learned counsel for the plaintiff and am of the view that the contention cannot be upheld. Since the question of jurisdiction goes to the root of the case, therefore, the trial of an issue relating to the jurisdiction of the Court must be tried as a preliminary issue to avoid holding of trial as a whole because if it is ultimately found that the Court had no jurisdiction to try the suit the holding of trial on merits will be sheer wastage of public time, money and energy. It is more so when a detailed inquiry involving leading of considerable evidence is not required to record findings on the issue and the evidence to prove or dis-prove the issue will be entirely different than the evidence which will be required to decide the issues on merits. 9. While dealing with a similar question. Patna High Court in Messrs. K.C. Bishwas & Sons & Ors. v. Central Alkusa Colliery Co., AIR 1973 Patna 184. has taken a similar view by holding as follows:- "7.............The point that wish to emphasis is that no elaborate enquiry will be necessary for the purpose of determining the question as to whether the plaintiff was or was not a registered firm on the date of institution of the present suit as contemplated by Section 69 (2) of the Act. Such a enquiry ought not, in my opinion, to be postponed for being taken up along with other questions of fact or law over which the parties are or may be at issue in the suit. The question which will be necessary for determining the issue of maintainability of the suit will involve an enquiry into the facts which will be entirely distinct from the question which will fall for determination of the cases of the parties on merits. 8........In my opinion, therefore, this is pre-eminently a case a preliminary issue, the decision of the Court below not to take up this issue as a preliminary issue for trial on the mere ground that it is linked up with certain questions of fact does not represent a sound exercise of discretion in accordance with the principles of justice and fair play." 10. In Mitsubishi France v. Neyveli Lignite Corporation Ltd. & Anr. In Mitsubishi France v. Neyveli Lignite Corporation Ltd. & Anr. AIR 1985 Madras 300 a Division bench of the High court Madras while dealing with a similar question, has held as follows:- "14. Turning to the order under appeal, we are not in a position to accept the reasons of the learned Judge. After all if the point of jurisdiction is held in favour of the appellant he need not undergo the ordeal of trial. No doubt, it may be a mixed question of facts and law. Nevertheless, where in the event of the appellant succeeding on this issue, it could avoid the ordeal of trial, certainly it is not only desirable but also just that this issue be tried as a preliminary issue." 11. Thus in view of the above position in law and the trial Court having already exercised its discretion in treating the issue relating to its jurisdiction to entertain and try the suit as a preliminary issue, the impugned order does not call for interference on this count. 12. As already, stated, the onus of proof of the issue ordered to be treated as a preliminary issue is on defendant No.l, therefore, it is defendant No. 1 who is to lead evidence to prove the issue. The order of the learned trial Judge directing the plaintiff to lead evidence in support of such issue is apparently wrong and illegal and deserves to be set aside. 13. As a result this revision petition is partly allowed to the extent that the order of the learned trial judge directing the plaintiff to lead evidence in support of the issue in question is set aside and he is directed to first call upon defendant No. 1 to lead evidence in support of the said issue and then to proceed to try and dispose it of in accordance with law. The rest of the prayer in the petition is however, disallowed. 14. The parties, though their learned counsel, are directed to appear before the trial Court on 22nd April. 2002.