"Therefore, after reviewing the entire case law on the point, we are of the opinion that under Order 14, Rule 2, C.P.C., an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue.
2. An application was preferred by the petitioner for trying issue regarding valuation and Court's jurisdiction as preliminary issues. In the application so filed the value on the house property was put at Rs. 4 lacs. After this, written statement was also filed. The petitioner pressed and made a prayer for trying the issue regarding jurisdiction as preliminary issue. The trial Court declined the prayer holding that this is a mixed question of law and fact. Against this order, a revision was filed. There was another matter also regarding which grievance was made. Case was sent to the trial Court. The trial Court did not interfere. The net result is that the issue in question was treated as an issue which could not be decided unless and until evidence is recorded.
3. It be seen that the law with regard to the question as to which issue is to be tried as a preliminary issue has been settled by the Full Bench of this Court in 1979 Jab LJ 720 : AIR 1979 Madh Pra 153 (FB) (Ramdayal Umraomal v. Pannalal Jagannath). There is an earlier decision 1970 Jab LJ 290 : AIR 1971 Madh Pra I (Santosh Chandra v. Gyan Sunder Bai), but as the decision on which the reliance is being placed by the plaintiff/ respondent has been given on the amended code, it would be apt to follow the same. In para 10 of Ramdayal Umraomal's case, 1979 Jab U 720 : AIR 1979 Madh Pra 153 (FB) (supra) it was observed as under:--
"Therefore, after reviewing the entire case law on the point, we are of the opinion that under Order 14, Rule 2, C.P.C., an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. Consequently the decisions cited as auth orities on behalf of the applicant cannot be accepted as laying down the correct Jaw. In fact the Division Bench order dated 25-8-1977 reported in Ram Dayal Umraomal v. Panna lal Jagannathji, has not at all answered the reference in clear words either this way or that way, creating confusion, and we are unable to agree with the view expressed therein and conclusion reached therein if any, as that decision also has not decided the case correctly." (Para 10)
4. Thus, the net result is that if an issue can be decided without recording evidence then it can be tried as a preliminary issue. In the present case, the present petitioner has filed a petition wherein the valuation has been put at 4 lacs. The plaintiff/respondents have not filed any detailed reply to that. They would be at liberty to file a detailed reply to the same now and in case the claim made in the application under Order 7, Rule 11 is disputed then the issue in question be decided after recording evidence and if it is found that the issue can be tried without recording evidence then the same be tried as a preliminary issue. Thus on the basis of the reply to be filed the trial Court to give a fresh look to the entire matter, and decide the issue as per law.
5. Disposed of accordingly.
Print Page
Madhya Pradesh High Court
Mohd. Mustafa Khan vs Gulam Raoof And Ors. on 19 April, 1995
Equivalent citations: AIR 1996 MP 11
1. A suit was filed by respondents Nos. 1 to 3 for declaration. It was also pleaded that the claim of the present petitioner on the basis of Will is of no consequence and it does not affect the right of the plaintiff/respondents Nos. 1 to 3.2. An application was preferred by the petitioner for trying issue regarding valuation and Court's jurisdiction as preliminary issues. In the application so filed the value on the house property was put at Rs. 4 lacs. After this, written statement was also filed. The petitioner pressed and made a prayer for trying the issue regarding jurisdiction as preliminary issue. The trial Court declined the prayer holding that this is a mixed question of law and fact. Against this order, a revision was filed. There was another matter also regarding which grievance was made. Case was sent to the trial Court. The trial Court did not interfere. The net result is that the issue in question was treated as an issue which could not be decided unless and until evidence is recorded.
3. It be seen that the law with regard to the question as to which issue is to be tried as a preliminary issue has been settled by the Full Bench of this Court in 1979 Jab LJ 720 : AIR 1979 Madh Pra 153 (FB) (Ramdayal Umraomal v. Pannalal Jagannath). There is an earlier decision 1970 Jab LJ 290 : AIR 1971 Madh Pra I (Santosh Chandra v. Gyan Sunder Bai), but as the decision on which the reliance is being placed by the plaintiff/ respondent has been given on the amended code, it would be apt to follow the same. In para 10 of Ramdayal Umraomal's case, 1979 Jab U 720 : AIR 1979 Madh Pra 153 (FB) (supra) it was observed as under:--
"Therefore, after reviewing the entire case law on the point, we are of the opinion that under Order 14, Rule 2, C.P.C., an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. Consequently the decisions cited as auth orities on behalf of the applicant cannot be accepted as laying down the correct Jaw. In fact the Division Bench order dated 25-8-1977 reported in Ram Dayal Umraomal v. Panna lal Jagannathji, has not at all answered the reference in clear words either this way or that way, creating confusion, and we are unable to agree with the view expressed therein and conclusion reached therein if any, as that decision also has not decided the case correctly." (Para 10)
4. Thus, the net result is that if an issue can be decided without recording evidence then it can be tried as a preliminary issue. In the present case, the present petitioner has filed a petition wherein the valuation has been put at 4 lacs. The plaintiff/respondents have not filed any detailed reply to that. They would be at liberty to file a detailed reply to the same now and in case the claim made in the application under Order 7, Rule 11 is disputed then the issue in question be decided after recording evidence and if it is found that the issue can be tried without recording evidence then the same be tried as a preliminary issue. Thus on the basis of the reply to be filed the trial Court to give a fresh look to the entire matter, and decide the issue as per law.
5. Disposed of accordingly.
No comments:
Post a Comment