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2012 DIGILAW 750 (RAJ)

Harish Chandra v. State of Rajasthan

2012-03-26

BELA M.TRIVEDI

body2012
JUDGMENT : Bela M. Trivedi, J. In view of the order dated 5th May, 2011, the writ petition is finally heard at orders stage with the consent of the parties. 2. The present writ petition has been filed under Article 227 of the Constitution of India challenging the order dated 07.04.2011 passed by the learned Civil Judge (Sr. Division) Hanumangarh, (hereinafter referred to as the 'trial court') in Civil Suit No.13/2009, whereby the issue No.3 has been decided by the trial court in favour of the respondent No.9 (original plaintiff) and against the petitioner (original defendant No.9). 3. The short facts giving rise to the present petition are that the present respondent No.9 (original plaintiff) has filed the suit against the respondent Nos. 1 to 8 and the petitioner (original defendants) seeking mandatory and permanent injunction in respect of the land in question. The said suit has been contested by the petitioner-defendant No.9 by contending inter alia that the suit was not maintainable before the civil court in view of the provisions contained in the Rajasthan Land Revenue Act. The Trial court framed certain issues from the pleadings of the parties. Thereafter, the petitioner- defendant submitted an application requesting the trial court to decide the issue Nos. 4 and 7 as preliminary issues, which pertained to the issue of jurisdiction of the court, as to whether the suit was barred under any law, and whether the suit was filed without paying sufficient court fees. The said application was dismissed by the trial court vide Order dated 12.01.2011, against which, the petitioner had preferred S.B. Civil Writ Petition No.1083 of 2011. The court vide order dated 07.02.2011 partly allowed the said writ petition by setting aside the said order of the trial court to the extent of refusal to decide the issue No.3 as preliminary issue and directed the trial court to try and decide the issue No.3 as preliminary issue. The trial court pursuant to the said order passed by this court, heard the learned counsels for the parties and decided the said issue in favour of plaintiff by holding in the impugned order dated 07.04.2011 that the court had the jurisdiction under Section 9 of Code of Civil Procedure to decide the suit, being aggrieved by the said order, the petitioner has preferred the present writ petition. 4. Learned counsel Mr. 4. Learned counsel Mr. S. Sidhu for the petitioner submitted that the trial court had committed an error in holding that the court had jurisdiction, though the reliefs claimed in the suit could not have been granted by the civil court in view of the provisions contained in the Rajasthan Tenancy Act as well as Rajasthan Land Revenue Act. Of course, he has not disputed that the said issue was not tried by the trial court, and was decided by the impugned order only on the basis of the submissions made by learned counsels for the parties. Learned counsel Mr. R.K. Singhal for the respondent No.9 - plaintiff has also submitted that the said issue No.3 was not tried by the trial court. According to him, the plaintiff has already led his evidence, and is to be crossed-examined by the petitioner-defendant. In short, both the learned counsels for the parties have agreed that let the said issue be decided by the trial court after trying the said issue i.e. after permitting both the parties to lead their respective evidence with regard to issue No. 3 to be decided as preliminary issue. 5. Having regard to the submissions made by learned counsels for the parties and to the provisions contained in Order 14 of Civil Procedure Code, it transpires that as per the Sub-Rule 2 of Rule 2 Order 14, if the court is of the 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 the jurisdiction of the court or 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. So far as the instant case is concerned, this court in the order dated 07.02.2011 has categorically held that the question of jurisdiction arising in the suit as framed by the trial court is a pure question of law and no factual dispute arises for consideration of the court for the purpose of deciding the said issue. So far as the instant case is concerned, this court in the order dated 07.02.2011 has categorically held that the question of jurisdiction arising in the suit as framed by the trial court is a pure question of law and no factual dispute arises for consideration of the court for the purpose of deciding the said issue. This court accordingly had directed the trial court to try and decide the said issue No.3 which pertained to the issue of jurisdiction as preliminary issue. However, as transpiring from the impugned order, and not disputed by the learned counsels for the parties, the trial court had only decided the said issue without trying the said issue. It is needless to say that in view of the provisions contained in Sub-Rule 2 of Rule 2 Order 14 of Civil Procedure Code also the trial court is required to try and decide the issue as the preliminary issue if the said issue pertained to the issue of jurisdiction of the court, and then deal with suit in accordance with the decision on that issue. Since the court has not tried the issue by giving opportunity to the parties to lead their respective evidence with regard to issue No.3 to be tried as preliminary issue, the impugned order deserves to be set aside. 6. In view of the above, the impugned order dated 07.04.2011 is set aside. The trial court is directed to try and decide the issue No.3 as preliminary issue, and then deal with the suit in accordance with the decision on that issue, in view of Sub-Rule 2 of Rule 2, Order 14 of Civil Procedure Code. The petition stands allowed accordingly. 7. However, it is clarified that this court has not expressed any opinion on the merits of the said issue and the trial court shall decide the issue No.3 as preliminary issue in accordance with law. Petition allowed.