ORDER
N.V. Balasubramanian, J.
1. The Civil Revision Petitioner is the second defendant and the first respondent is the plaintiff and the second respondent is the first defendant in the suit.
2. The Civil Revision petitioner is a Co-operative Society. The first respondent/plaintiff has filed the suit O.S. No. 97 of 1993 on the file of the District Munsif, Arni, for a declaration that the suit property belongs to the plaintiff and for a permanent injunction against the defendants. The second defendant has filed a written statement wherein he has raised an objection that the Civil Court has no jurisdiction to entertain the suit, as the matter falls within the purview of the Tamil Nadu Co- operative Societies Act, 1983 and the Rules framed thereunder. The second defendant raised an objection that there was a valid award passed against the first defendant for a sum of Rs. 1,05,981.60, and the plaintiff, who is the sister of the first defendant has instituted the suit with a view to harass the second defendant. The petitioner filed an application under Order 14, Rule 2, C.P.C. and claimed that the question of jurisdiction may be tried and decided as a preliminary issue. The lower Court posed the question whether the Court has the jurisdiction to try the case or not. After considering the arguments advanced by and on behalf of the parties, learned trial Judge held that the plaintiff is not a member or an employee of the Co-operative Society and hence, under Rule 90, there is no statutory bar against the plaintiff to file the suit. The trial Court also held that the suit is for declaration and the Civil Revision petitioner has obtained an order of interim in junction in L.A. No. 314 of 1993 and after obtaining he interim in junction, it is not open to the Civil Revision petitioner to contend that the civil court has no jurisdiction. Therefore, the trial Court held that the Civil Court has jurisdiction to try the suit and in this view of the matter, dismissed the application filed by the Civil Revision petitioner.
3. Learned counsel for the petitioner submitted that the lower Court erred in dismissing the application for framing the preliminary issue. According to the learned counsel for the petitioner, the question whether the Civil Court has the necessary jurisdiction to try the suit should be considered at the time of trial of the suit and the order of the lower Court dismissing the application even at threshold is not sustainable in law. He referred to the provisions of Section 156 of the Tamil Nadu Co- operative Societies Act, 1983 and also the Rule 135 of the Tamil Nadu Co-operative Societies Rules, 1988. Section 156 of the said Act imposes a statutory bar on the jurisdiction of the Civil Court with reference to an order of award passed, a decision or action taken or direction issued under the Co-operative Societies Act by an arbitrator, a liquidator, a Registrar or an Officer authorised or empowered by him. According to the learned counsel for the petitioner, since the award has already been passed against the first defendant, the present suit instituted is, in substance, a proceeding to set aside the award or against the enforcement of the award. He also referred to Rule 135 of the Tamil Nadu Co-operative Societies Rules, 1988 which provides for investigation of the claims and objections to the attachment of property. The case of the petitioner is that if the plaintiff claims that she is entitled to claim an interest in the suit property, it is always open to her to prefer a claim before the Registrar under the Rule 135 of the said Rules, and on such a claim being made, the sale Officer will investigate the claim or objection and dispose of it on merits. According to him, the jurisdiction of the Civil Court is barred to try the suit. He also submitted that the lower Court erred in dismissing the application without considering the provision of Section 156 and Rule 135 of the Tamil Nadu Co-operative Societies Act and Rules. There is no representation on behalf of the respondents.
4. The question for consideration is whether the trial Judge was justified in dismissing the application for farming the preliminary issue. The procedure to be followed by the Court in considering an application filed under Order 14, Rule 2 of the Code has been delineated in several decisions of this Court as well as other Courts. Order 14, Rule 1 of the code requires that when certain questions in the suit should be first decided, the proper order to make is that the suit should be set down for the settlement of issue. Thee Judge will then be in a position to decide which of the issues are necessarily to be determined. The same procedure should be followed when one party suggests that the suit can be decided on the hearing of a preliminary issue. In other words, whether the preliminary issue of law raised would be sufficient and is so clear cut that it will decide the suit finally once and for all. These are the facts that have to be borne in mind by the trial Judge when considering the application to decide an issue raised by the petitioner as preliminary issue. When the Court decides to treat an issue in the suit as a preliminary issue, the proper course to follow is not merely to give a finding on the issue, but also decide the suit in accordance with the finding so given; when such a course has not been adopted and the Court merely gives a finding and does not decide the suit in accordance with the finding, the Court acts with material irregularity.
5. In Hardwari Lal v. Pohkar Mal, AIR 1978 P & H 230, Punjab and Haryana High Court held that a comparative reading of Order 14, Rule 2 as it existed earlier to the amendment and the one after amendment by Act 104 of 1976 would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law has been determined. On the other hand, in the amended provision, the exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law in force.
6. In Bharat Heavy Electricals Ltd. v. General Contractor Co., : AIR1996Guj46 , a learned Judge held as under :-
' The trial Court was required and requested to frame an issue relating to jurisdiction only. It was not open to the trial Court to decide the merits of the issue as if it was raised'.
The decision makes it clear that it is not open to the trial Judge to decide the merits of the issue, as if it is raised.
7. It is clear that after the amendment to the Code of Civil Procedure, as per the Act 104 of 1976, the Court should try as a preliminary issue on question or jurisdiction of a bar to the suit and the Court should first find out whether the issue raised can be tried as a preliminary issue on the question of bar to the suit. As observed by a Full Bench of Madhya Pradesh High Court in Ramdayal Umaromal v. Pannalaljaganathan, AIR 1979 M.P. 193, the discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence. Hence, when an application is filed for framing a preliminary issue on the ground of statutory bar, the Court should first decide whether the statutory bar is so clear and its decision thereon will decide the suit finally once and for all. On the other hand, if the statutory bar is not clear, the Court should record a finding that there is no statutory bar for the institution of the suit and it should postpone the consideration of the issue relating to that question along with other issues arising in the suit at the time of final hearing of the suit. No doubt, it is true that when considering the question whether preliminary issue should be framed or not, the trial Court may enter into the controversy to a certain extent whether the statutory bar operates or not for the institution of the suit and decide the question whether the suit can be decided on such a preliminary issue. But, the views expressed by the trial Judge either in accepting the plea or in rejecting the application on the ground that there is no statutory bar can only be taken as a prima facie view and cannot be regarded as a final decision arrived at by the Court on the question of bar of jurisdiction created by certain provisions of Co-operative Societies Act or any other Act. It is well-settled that the decision of the Court arrived at the time of considering the interlocutory orders does not decide the rights of the parties finally and can only be taken as the view expressed for the proper disposal of the application. In the same way, the views expressed by the Court on the question of bar of jurisdiction of the Civil Court in the interlocutory application cannot be taken as its final view expressed by the Court relating to the statutory bar created by the Co-operative Societies Act as the decision of the Court, does not determine the rights of the parties finally. Hence, the decision of the Supreme Court in Satyadhyan Ghosal v. Deorajin Debi, : [1960]3SCR590 wherein the Supreme Court held as under :-
'The principle of res judicate applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.'
does not apply as the matter has not been decided in one way or the other in the interlocutory stage. Therefore, it cannot be held that the Court has positively taken the view that there is no statutory bar to institute the Civil suit under the relevant State Act. Hence, I am not able to accept the contentions of the learned counsel for the petitioner that the Civil Court has expressed its view on the question of jurisdiction and decided the issue on merits of the claim as well. In this view of the matter, the decision of the Gujarat High Court in Bharat Heavy Electricals Ltd., Case, : AIR1996Guj46 does not apply to the facts of the case. Though the other reason given by the trial Judge, namely, there is an estoppel created by the conduct of the petitioner in obtaining an order of interim injunction may not be quite relevant in considering an application for framing a preliminary issue, however, in view of the discretion exercised by the trial Court in rejecting the application for framing the preliminary issue. I am not inclined to interfere with the order passed by the trial Judge in rejecting the application. In this view of the matter, the Civil Revision Petition stands dismissed and it is accordingly dismissed. No costs.