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2009 DIGILAW 3604 (ALL)

Ram Ji v. Kamlakar Bajpai

2009-11-26

VEDPAL

body2009
JUDGMENT Hon'ble Vedpal, J. This revision under Section 115 of the Code of Civil Procedure has been filed by Defendant-Revisionists against the order dated 4th May 2000, passed by Sri S.C.Mishra, the then VII Additional District Judge, Rae Bareli in Original Suit No. 7 of 1990 Kamlakar Bajpai and others Vs. Ram Ji and others, whereby application of the revisionists for deciding issue nos. 7 and 8 as preliminary issues was rejected.. 2. Brief facts, relevant for the decision of this revision are that in Original Suit No. 7 of 1990 Kamalakar Bajpai and others Vs. Ram Ji and others, on the basis of pleadings of the parties' issues were framed on 14.10.1998. Issues nos. 7 and 8 were to the following effect :- "7.Whether the suit under Section 92 of the C.P.C. is not maintainable against the defendants? 8.Whether this court has got no jurisdiction to hear the suit?" On 4.4.2000, when the suit was fixed for final hearing, the defendants moved an application for deciding issue nos. 7 and 8 as preliminary issues. Learned court below after hearing the parties held that at this stage prima facie, it cannot be held that the suit does not relate to public trust and it is a matter to be decided on the basis of the evidence of the parties and the issues require evidence of the parties and as such these issues cannot be decided as preliminary issues. The defendants application was rejected by the trial court vide order dated 4.4.2000. Feeling aggrieved with the said order, the defendants have filed this revision. 3. I have heard learned counsel for the revisionists and perused the impugned order along with the record of the case carefully. None appeared for the opposite parties. 4. The short question for determination in this revision is whether the impugned order suffers from jurisdictional error and can be interfered with in this revision. In order to appreciate the submissions made by the learned counsel for the revisionists, it is necessary to go through the provisions of Order 14 Rule 2 of the C.P.C. which reads as under: "Rule-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. 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." It reveals from the perusal of the Order 14 Rule 2 C.P.C., quoted above that. Sub-rule(2) leaves the discretion upon the court, to determine which issue should be decided as a preliminary issue and it is not mandatory for the court to decide the issue of jurisdiction or other issues relating to the maintainability of the suit as preliminary issue. Sub-rule (1) of Rule 2 mandates the Court that notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Order 14 Rule 2 of the C.P.C. was amended vide CPC(Amendment) Act, 1976 w.e.f. 1.2.1977 making it discretionary for the Court to decide the preliminary issues after taking evidence along with other issues. Thus, the intention of Legislature is clear that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues be avoided, as far as possible. If all the issues are decided at a time that may avoid unnecessary delay and multiplicity of the proceedings in relation to the deciding the preliminary issue. 5. In the instant case it reveals that application for deciding issues nos. 7 and 8 as preliminary issues was moved by defendants for the first time on 4.4.2000 when suit was fixed for final hearing and four plaintiffs witnesses were present, while the issues were framed on 14.10.1998. Thus it appears that intention of defendants was to delay the progress of the suit. 7 and 8 as preliminary issues was moved by defendants for the first time on 4.4.2000 when suit was fixed for final hearing and four plaintiffs witnesses were present, while the issues were framed on 14.10.1998. Thus it appears that intention of defendants was to delay the progress of the suit. Further the court below has clearly held that prima facie, it cannot be said that the suit does not fall under the provisions of Section 92 or it is outside the jurisdiction of the Court. The learned trial court has specifically held that the issues require evidence also and it will be decided along with other issues. Thus, the impugned order passed by the court below that all the issues shall be decided after taking the evidence does not suffer from any illegality or irregularity and there appears no jurisdictional error in the case. 6. In view of what has been said above, the revision has no merit and is liable to be dismissed and is accordingly dismissed.