Smt. Vidyawati Vs. Satish Chandra Agarwal and Others - Court Judgment

Excerpt:
civil - order declining to decide a question as preliminary question - order 9 rule 13 of code of civil procedure, 1908 - case not decided within the meaning of section 115 - revision order not maintainable against such order. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra.....order1. heard sri navin sinha, learned counsel for the applicant.2. it appears that smt. vidyawati, plaintiff-applicant, holds in her favour a decree, passed in original suit no. 486 of 19x8 between smt. vidyawati and satish chandra agarwal and others, against the opposite parties. sri satish chandra agarwal, the defendant-opposite party, first set, in the instant revision, has applied for setting aside the said decree under o. ix, r. 13 of the civil p. c. 1908, hereinafter called the 'code'. the application of the opposite parly, first set, has been registered as misc. case no. 3 of 1989, giving rise to the instant revision. in the said case, the plaintiff-applicant filed an objection with regard to maintainability of the application of the opposite party, first set under o. ix, r. 13 of.....

Judgment:
ORDER

1. Heard Sri Navin Sinha, learned counsel for the applicant.

2. It appears that Smt. Vidyawati, plaintiff-applicant, holds in her favour a decree, passed in Original Suit No. 486 of 19X8 between Smt. Vidyawati and Satish Chandra Agarwal and others, against the opposite parties. Sri Satish Chandra Agarwal, the defendant-opposite party, first set, in the instant revision, has applied for setting aside the said decree under O. IX, R. 13 of the Civil P. C. 1908, hereinafter called the 'Code'. The application of the opposite parly, first set, has been registered as Misc. Case No. 3 of 1989, giving rise to the instant revision. In the said case, the plaintiff-applicant filed an objection with regard to maintainability of the application of the opposite party, first set under O. IX, R. 13 of the Code and urged the court to decide the question of maintainability as preliminary question.

3. After hearing the parties, the court below came to the conclusion that the disposal of the preliminary objection raised by the plaintiff-applicant as well as of the application of the defendant-opposite party, first set, under O. IX, R. 13 of the Code, depended upon investigation of fact and law, both. In the opinion of the court below the enquiry in relation to fact and in relation to law could not be held separately. On the basis of this conclusion the court below, by means of the impugned order dated 2nd May, 1989, overruled the objection of the plaintiff-applicant and rejected her prayer for deciding the question of maintainability of the application of the defendant opposite party, first set, under O. IX, R. 13 of the Code as preliminary question.

4. This Court, after hearing the counsel for the applicant, is satisfied that on the facts and in the circumstances of the case, the court below did not act illegally or with material irregularity in exercise of jurisdiction in declining to decide the question of maintainability of the application of the defendant-opposite party, first set, under O. IX, R. 13 of the Code, as a preliminary question. The impugned order is sound in law and does not warrant any interference by this Court in exercise of its jurisdiction under S. 115 of the Code.

5. This apart, instant revision itself is not maintainable in as much as an order declining to decide a question as preliminary question does not decide any case within the meaning of S. 115 of the Code. Further, refusal to adjudicate upon a question as preliminary question does not give rise to any question touching jurisdiction of the court. No revision against an order of such a refusal is maintainable.

6. The revision lacks merit and is, therefore, dismissed summarily.

7. Revision dismissed.