Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 667 (PAT)

Krishna Kumar Tibrewal v. Sheo Narayan Prasad @ Sheo Shankar Prasad

2005-08-01

S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the petitioner, who is the opposite party in Misc. Case No. 12 of 1996 which was filed by the sole opposite party of this revision who was the plaintiff and had filed the said Misc. Case under the provisions of Order 39, Rule 2(a) of the Code of Civil Procedure for violation of the order of injunction dated 11.4.1989. 2. The petitioner is aggrieved by order dated 14.3.2005, passed in Misc. Case No. 12 of 1996 by which the learned Subordinate Judge-ll, Jhanjharpur (Madhubani) held that the petitioners petition dated 7.1.2005 under Order XIV, Rule 2(2) of the Code cannot be decided at this stage and kept the same in abeyance for deciding it alongwith other issues of fact and law. 3. Learned counsel for the petitioner submits that he was only a purchaser and hat too by a deed executed prior to the passing of the order of injunction and hence, there was no occasion of any question of fact being gone into and the Court should have considered his petition for maintainability as preliminary issue and keeping it in abeyance till the final decision clearly meant its rejection without giving any specific finding with respect thereto, hence he claims that the impugned order of the learned court below is illegal, arbitrary and perverse. 4. On the other hand, learned counsel for the opposite party vehemently opposes the contentions of the learned counsel for the petitioner and submits that all the points and issues raised above, were considered by the learned court below while passing the impugned order and finding that the question of maintainability cannot be gone into without taking evidence, kept the matter in abeyance. He further submits that the petitioner should have no grievance as the question of maintainability will also be considered at the time of final disposal of the Misc. Case, hence he submits that there is no illegality in the impugned order which deserves no interference. 5. He further submits that the petitioner should have no grievance as the question of maintainability will also be considered at the time of final disposal of the Misc. Case, hence he submits that there is no illegality in the impugned order which deserves no interference. 5. After hearing learned counsel of both the sides and after perusing the terials on record, it is quite apparent that the revision-petitioner who was opposite party in the MJC case had filed a petition dated 7.1.2005 under the provisions of Order XIV, Rule 2(2) of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure in which the maintainability of the case was challenged and it was prayed that the same be consid- ered as a preliminary issue. The opposite party, who was applicant in the court be- low, filed his rejoinder. In my opinion, when such a petition challenging the maintainabi- lity of a case is filed, the court has two options, first, either to allow the same and decide the question of maintainability of the case and the second, to reject such a petition recording the circumstances. But, in the instant case a strange procedure has been adopted by the learned court below by the impugned order by which neither the said application was rejected nor it was allowed and it was directed to be kept in abeyance till the final hearing of the case. It goes without saying that even if such a petition is not filed, it is the duty of the Court to consider at the time of hearing whether the M.J.C. case filed by a party was maintainable in law. Hence, there was no occasion for the learned court below to keep the said petition in abeyance. If the Court was satisfied that mixed question of law and fact were involved and could not be decided without considering the evi- dence of the parties, the Court had the jurisdiction to reject the same. On the other hand, if the Court was of the view that the preliminary issue of maintainability can be decided at this stage there was no occasion for lingering the case for long period for being decided on all the issues of facts and law and the said petition of maintainability should have been allowed and the Misc. Case should have been decided on its basis. 6. Case should have been decided on its basis. 6. In the said circumstances, this matter is remitted to the learned court below to decide the petition of the revision- mapetitioner dated 7.1.2005 with regard to the maintainability under Order XIV, Rule 2(2) of the Code one way or the other in accordance with the observations made above and in accordance with the well settled principles of law. The said matter has to be decided expeditiously, preferably within a period of one month from the date of production/receipt of a copy of this order without being influenced by the impugned order dated 14.3.2005. With the said directions this Civil Revision is disposed of.