Vinod K. Sharma, J.
1. This revision petition is directed against the order dated 1.9.2007 passed by the learned Additional Civil Judge (Sr. Divn.) Gidderbaha allowing an application moved by the defendant respondent under Order 14 Rule 2(2) CPC to treat the question of jurisdiction to be preliminary issue.
2. The learned Counsel for the petitioner vehemently contended that in view of the pleadings of the parties the question of jurisdiction is a mixed question of law and fact, which cannot be decided without allowing the parties to lead evidence, therefore, the Court could not treat it as preliminary issue.
3. The reading of Order 14 Rule 2(2) CPC can only lead to the conclusion that it is only pure question of law which can be treated as preliminary issue but when the question of jurisdiction requires leading of evidence then it has to be treated as mixed question of law and fact and cannot be treated as preliminary issue and is to be decided along with the other issues.
4. In support of this contention the learned Counsel for the petitioner has placed reliance on the judgments of this Court in the case of Ram Kali v. Sohan Lal and Daljit Singh v. Joginder Singh and the judgment of the Hon'ble Supreme Court in the case of Abdul Rahman v. Prasony Bai 2003(1) R.C.R. (Civil) 236.
5. The learned Counsel for the respondent contends that the question of jurisdiction can be treated as preliminary issue if the Court forms an opinion that the suit can be finally disposed of on the decision of said issue alone. It is also the contention of then learned Counsel for the respondent that the discretion exercised by the learned trial Court is not to be lightly interfered with in exercise of revisional jurisdiction as under Order 14 Rule 2(2) CPC discretion vests with the Court to treat the question of jurisdiction to be preliminary issue.
6. It is also the contention by the learned Counsel for the respondent that issues are framed when assertion made by a party is denied by another. The moment issue is framed it is incumbent that the parties would be leading evidence in support of their assertions. The Order 14 Rule 2(2) CPC permits the Court to treat a question of jurisdiction to be preliminary issue therefore merely because some evidence is required to led it cannot be held that the issue of jurisdiction cannot be treated to be a preliminary issue. This contention of the learned Counsel for the respondent has force as any other interpretation would defeat the very object of Order 14 Rule 2(2) CPC.
7. The learned Counsel for the respondent in support of contention that the question of jurisdiction can be treated to be preliminary issue, has placed reliance on the judgment of this Court in the case of Harinder Kumar v. Coromandal Fertilizers Ltd. (1998-3) 120 P.L.R. 399 and the judgment of this Court in the case of M/s Modern Food Industries (India) Ltd v. Mukerian Papers Limited and Anr. wherein this Court has been pleased to lay down as under:
11. I have considered the submission of the learned senior counsel for the petitioner. I find that this Court had occasion to deal with the provisions of Order 14 Rule 2 Sub-rule (2) CPC in the aforementioned cases. Dealing with the question of territorial jurisdiction of the Court, it was held by this Court that although the aforesaid question was always a mixed question of facts and law but the same should be treated as preliminary issue. Even if some evidence was required to be led in support of the said issue by the parties still it would be proper to treat that aforesaid issue as a preliminary issue. The observations made by the Court in the aforesaid authority of Harinder's case (supra) may be noticed as follows:
Sub-rule (2) of Rule 2 of Order 14 clearly shows that the case or part thereof may be disposed of on an issue of law only and that issue of law may be tried as a preliminary issue if it relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and postpone the settlement of other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue.
It is not disputed that in the present case issue with regard to the territorial jurisdiction of the court is an issue of law. It cannot be also disputed that in case the said issue of territorial jurisdiction is decided in favour of the defendants, the suit itself will be dismissed and the defendant then will not be required to undergo the ordeal of trial. No doubt, it may be a mixed question of facts and law; nevertheless where in the event of defendants succeeding on this issue, it could avoid the ordeal of trial. It will be, therefore, just and proper that this issue be treated as preliminary issue. Keeping in view the facts and circumstances of the present case, under Sub-rule (2) of Rule 2 of Order 14, the learned trial Court has come to this conclusion that the issue with regard to territorial jurisdiction should be decided as a preliminary issue. It cannot be said that the said opinion is based on extraneous or irrelevant material. I am therefore, of the opinion that such an order does not call for interference by this Court in its jurisdiction under Section 115 CPC. The view I have taken finds support from a Division Bench judgment of Madras High Court in Mitsubishi France v. Neyveli Lignite Corporation Ltd. (1985) A.I.R. Mad. 300 and two decisions of this Court in Uggarsain v. Massu C.R. 3719 of 1996, decided on 22.4.1997 and Meharbhan v. Punjab Wakf Board . Here reference may also be made to a judgment of the Supreme Court in Tayabhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd. : [1997]2SCR152 . In this case it was observed by the Hon'ble Supreme Court that the Court should decide the question of jurisdiction in the first instance. It is, however, made clear that the learned trial Court shall afford the parties opportunities to lead evidence if they so desire, before deciding the said issues.
8. The learned Counsel for the respondent has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Abdul Rahman v. Prasony Bai 2003(1) R.C.R. (Civil) 236, wherein the Hon'ble Supreme Court has been pleased to lay down that in case the suit can be disposed of on the question of preliminary issue, the same should be disposed of. However, the same cannot be a basis because i.e. the basis of admitted fact whereas the facts of the present case are different.
9. On consideration of the matter, I find force in the contention raised by the learned Counsel for the respondent. question of jurisdiction can always be treated as preliminary issue as the suit be disposed of on the decision of that issue itself.
No merit.
Dismissed.