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2012 DIGILAW 1661 (RAJ)

Rameshwar v. Ishwar Devi

2012-07-31

BELA M.TRIVEDI

body2012
JUDGMENT : Bela M. Trivedi, J. The petitioner-original plaintiff has filed the present petition challenging the order dated 18.10.2011 passed by the Civil Judge (JD), Dholpur (hereinafter referred as the "trial court") in Civil Regular Suit No.83 of 2009, whereby the trial court has decided the issue No.2 as the preliminary issue against the petitioner-plaintiff. With the consent of learned counsels for the parties, the matter is finally heard and decided at the admission stage. 2. The petitioner-plaintiff has filed the suit against the respondents-defendants seeking injunction in respect of the property in question. In the said suit, the plaintiff had relied upon the partition deed dated 9.9.2002 to show that the family arrangement was made between the parties. The said suit has been resisted by the respondents-defendants denying the allegations/averments made in the plaint as also denied the execution of the alleged partition deed. The trial court framed as many as four issues from the pleadings of the parties. The issue No.2 of the said issues was "whether the partition deed dated 9.9.2002 was not admissible in evidence, the same being unregistered and not properly stamped one?" The said issue No.2 has been decided by the trial court as preliminary issue against the petitioner by holding that the said partition deed was not admissible in evidence, vide the impugned order dated 18.10.2011. Being aggrieved of the said order, present petition has been preferred under Article 227 of the Constitution of India. 3. The learned counsel Mr. D.K. Garg for the petitioner has submitted that the issue No.2 decided by the trial court as the preliminary issue was a mixed question of law and fact and could not be decided as the preliminary issue in view of the Order 14, Rule 2 of Civil Procedure Code. According to him, the said issue neither related to the issue of jurisdiction of the court nor with regard to the bar contained in any law for the time being inforce and therefore the said issue could not be decided as the preliminary issue. However, learned counsel Mr. Sanjay Sharma for the respondents defendants submitted that the said issue was decided as preliminary issue with the consent of the learned counsels for the parties and it is not proper on the part of the petitioner, to challenge the impugned order when it is passed against the petitioner. 4. However, learned counsel Mr. Sanjay Sharma for the respondents defendants submitted that the said issue was decided as preliminary issue with the consent of the learned counsels for the parties and it is not proper on the part of the petitioner, to challenge the impugned order when it is passed against the petitioner. 4. Before adverting to the rival contentions raised by learned counsel for the parties, it would be necessary to reproduce the relevant part of Order 14 Rule 2 of Civil Procedure Code: "Order 14, Rule 2 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." 5. From the bare reading of the provisions, it clearly transpires that the court could try and decide the issue of law as the preliminary issue if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being enforce. So far as the issue No.2 in question is concerned, the said issue was, whether the partition deed dated 9.9.2002 was inadmissible in evidence, the same being unregistered and not properly stamped. The said issue being neither the issue pertaining to the jurisdiction of the court nor pertaining to any bar created by any law for the time being in force, as contemplated under Order 14 Rule 2 of Civil Procedure Code, the said issue could not have been tried and decided by the trial court as the preliminary issue. 6. The said issue being neither the issue pertaining to the jurisdiction of the court nor pertaining to any bar created by any law for the time being in force, as contemplated under Order 14 Rule 2 of Civil Procedure Code, the said issue could not have been tried and decided by the trial court as the preliminary issue. 6. In that view of the matter, the impugned order passed by the trial court being erroneous, the same deserves to be set aside and the petition deserves to be allowed. 7. The order dated 18.10.2011 passed by the trial court is therefore set aside and the trial court is directed to proceed further with suit in accordance with law. Petition stands allowed accordingly. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.