V. Subramani Vs. Arumugham - Court Judgment

Excerpt:
- - , as amended in 1976, if a revision is filed against an interim order, unless irreparable injury or failure of justice is shown the revision is not maintainable. in the present case, there is no irreparable injury or failure of justice.orderabdul hadi, j.1. the defendant whose i.a. no. 1263 of 1992 praying for trying issue no. 5 first as preliminary issue in the suit o.s. no. 406 of 1987 was dismissed, is the petitioner herein. the said issue no doubt raises the. question of pecuniary jurisdiction of the court below to try the suit on the ground that the suit has been properly valued.2. the learned counsel for the petitioner argues that the court below has not given reasons for passing the abovesaid order of dismissal and that when the jurisdiction question is involved, order 14, rule 2(a) is attracted and the court below should have agreed to take up the abovesaid issue as a preliminary issue to be tried before the other issues are tried.3. but, first of all, it should be noted that the disposal of the said application did not involve any adjudication of any right or obligation of the parties in controversy and that hence the order cannot be treated as 'case decided' within the meaning of that term in section 115, c.p.c. (vide : baldevdas shivlal and anr. v. filmistan distributors (india) (p) ltd. : [1970]1scr435 , regarding the meaning of the term 'case decided'). therefore, this civil revision petition is not maintainable at all.4. that apart, it cannot be said that the court below has not given any reason for passing the abovesaid order. the court below has pointed out that even though the suit was filed in 1987 itself, the present application has been filed only about five years later in 1992. the written statement of the petitioner which was filed in 1988 itself no doubt states in paragraph 13 as follows:the suit is not properly valued and the court-fee paid by the plaintiff also not correct. this court also has no pecuniary jurisdiction to deal with this matter.if really, the defendant wanted to have the trial of this issue first, he would have come forward with an application to that effect long back as soon as the issues were framed in about 1988. only after the suit has been listed for trial, the present la. has been filed. so, it is clear, only to protract the trial of the suit, the said i.a. has been filed. for this reason, the court below has rightly dismissed the application and it cannot be said that in coming to the abovesaid conclusion on the abovesaid reasoning, the court below has erred in exercise of the jurisdiction. so, since there is no error of jurisdiction as stated above, this civil revision cannot be sustained.5. further, as per section 115, c.p.c., as amended in 1976, if a revision is filed against an interim order, unless irreparable injury or failure of justice is shown the revision is not maintainable. in the present case, there is no irreparable injury or failure of justice. no such allegation even has been made in the supporting affidavit to the application. therefore, also this civil revision petition has no merit.6. further, as per order 14, rule 2, c.p.c., only when 'the case or any part thereof may be disposed of on an issue of law, the court may try that issue first. but, what is contained in the affidavit in support of i.a. no. 1263 of 1992 is only that the court has no pecuniary jurisdiction and that hence that question should be decided first. as per the written statement, the said contention is based on the fact that the suit is not properly valued. if that is so, when a proper valuation is made and it is found that the court below has no jurisdiction, but some other court alone has jurisdiction, then the plaintiff may have only to be returned for presentation to the said proper court. in such a situation, the said return of the plaint cannot be considered as 'disposal' of the case or part of it, spoken to in order 14, rule 2, c.p.c. therefore also, on the very allegation in the supporting affidavit, the abovesaid la. is not maintainable.7. further, as per order 14, rule 2, c.p.c, only a question of law, if at all can be taken up as a preliminary issue. issue no. 5 in the present case, relating to jurisdiction, involves question of law and fact, since the question raised is that the suit has been not properly valued. in this connection, no doubt the learned counsel for the petitioner relied on the decision in mitsubishi france v. neyveli lignite corporation limited : air1985mad300 , contending that the said decision has held that even where mixed questions of law and fact are relatable to an issue raising jurisdiction question, that issue could be tried as preliminary issue. but, i find that the supreme court has observed in s.s. khanna v. f.j. dhillon : [1964]4scr409 , while interpreting order 14, rule 2, c.p.c., as follows:the jurisdiction to try issues of law apart from the issues of fact, may be exercised, only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. normally, all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.so, i am bound by the supreme court decision. i am, therefore, quite convinced that this civil revision petition has to be dismissed. 8. in the result, the civil revision petition is not admitted, but dismissed.

Judgment:
ORDER

Abdul Hadi, J.

1. The defendant whose I.A. No. 1263 of 1992 praying for trying issue No. 5 first as preliminary issue in the suit O.S. No. 406 of 1987 was dismissed, is the petitioner herein. The said issue no doubt raises the. question of pecuniary jurisdiction of the Court below to try the suit on the ground that the suit has been properly valued.

2. The learned Counsel for the petitioner argues that the court below has not given reasons for passing the abovesaid order of dismissal and that when the jurisdiction question is involved, Order 14, Rule 2(a) is attracted and the court below should have agreed to take up the abovesaid issue as a preliminary issue to be tried before the other issues are tried.

3. But, first of all, it should be noted that the disposal of the said application did not involve any adjudication of any right or obligation of the parties in controversy and that hence the order cannot be treated as 'case decided' within the meaning of that term in Section 115, C.P.C. (Vide : Baldevdas Shivlal and Anr. v. Filmistan Distributors (India) (P) Ltd. : [1970]1SCR435 , regarding the meaning of the term 'case decided'). Therefore, this civil revision petition is not maintainable at all.

4. That apart, it cannot be said that the court below has not given any reason for passing the abovesaid order. The court below has pointed out that even though the suit was filed in 1987 itself, the present application has been filed only about five years later in 1992. The written statement of the petitioner which was filed in 1988 itself no doubt states in paragraph 13 as follows:

The suit is not properly valued and the court-fee paid by the plaintiff also not correct. This Court also has no pecuniary jurisdiction to deal with this matter.

If really, the defendant wanted to have the trial of this issue first, he would have come forward with an application to that effect long back as soon as the issues were framed in about 1988. Only after the suit has been listed for trial, the present LA. has been filed. So, it is clear, only to protract the trial of the suit, the said I.A. has been filed. For this reason, the court below has rightly dismissed the application and it cannot be said that in coming to the abovesaid conclusion on the abovesaid reasoning, the court below has erred in exercise of the jurisdiction. So, since there is no error of jurisdiction as stated above, this civil revision cannot be sustained.

5. Further, as per Section 115, C.P.C., as amended in 1976, if a revision is filed against an interim order, unless irreparable injury or failure of justice is shown the revision is not maintainable. In the present case, there is no irreparable injury or failure of justice. No such allegation even has been made in the supporting affidavit to the application. Therefore, also this civil revision petition has no merit.

6. Further, as per Order 14, Rule 2, C.P.C., only when 'the case or any part thereof may be disposed of on an issue of law, the court may try that issue first. But, what is contained in the affidavit in support of I.A. No. 1263 of 1992 is only that the court has no pecuniary jurisdiction and that hence that question should be decided first. As per the written statement, the said contention is based on the fact that the suit is not properly valued. If that is so, when a proper valuation is made and it is found that the court below has no jurisdiction, but some other court alone has jurisdiction, then the plaintiff may have only to be returned for presentation to the said proper court. In such a situation, the said return of the plaint cannot be considered as 'disposal' of the case or part of it, spoken to in Order 14, Rule 2, C.P.C. Therefore also, on the very allegation in the supporting affidavit, the abovesaid LA. is not maintainable.

7. Further, as per Order 14, Rule 2, C.P.C, only a question of law, if at all can be taken up as a preliminary issue. Issue No. 5 in the present case, relating to jurisdiction, involves question of law and fact, since the question raised is that the suit has been not properly valued. In this connection, no doubt the learned Counsel for the petitioner relied on the decision in Mitsubishi France v. Neyveli Lignite Corporation Limited : AIR1985Mad300 , contending that the said decision has held that even where mixed questions of law and fact are relatable to an issue raising jurisdiction question, that issue could be tried as preliminary issue. But, I find that the Supreme Court has observed in S.S. Khanna v. F.J. Dhillon : [1964]4SCR409 , while interpreting Order 14, Rule 2, C.P.C., as follows:

The jurisdiction to try issues of law apart from the issues of fact, may be exercised, only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally, all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.

So, I am bound by the Supreme Court decision. I am, therefore, quite convinced that this civil revision petition has to be dismissed. 8. In the result, the civil revision petition is not admitted, but dismissed.