NARESH CHANDRA DAS Vs. GOPAL CHANDRA DAS

JUDGEMENT

(1.) The facts leading to the present appeal may be summarised as follows:- Admittedly the parties have been running a partnership business in the name and style of Kalpataru Electric and Electronics at Bijpur within the district of North 24-Paraganas. The plaintiff-appellant filed Title Suit No.534 of 1988 in the Court of 1st Assistant District Judge, Barasat. North 24-Paraganas alleging that another business of the name of 'Audio Vision' being run at Kalyani within the district of Nadia was started as the branch of the partnership business at Bijpur with capital supplied from its funds and assets supplied from its stock. The appellant prayed for a declaration in the suit that the business at Kalyani was also partnership business and/ or joint property and business of the parties and consequential reliefs. The contention of the defendant-respondent as per his written statement was that the business at Kalyani was started by him alone with his own money and that it exclusively was his own business separate from the partnership business at Bijpur. He also challenged the maintainability of the suit at Barasat Court since the property in dispute was situated at Kalyani within the district of Nadia.

(2.) The respondent also filed an application under O.14, R.2 of the Civil P.C. urging the learned trial Judge to frame and try the question of jurisdiction as a preliminary issue. The prayer was opposed. However, the learned trial Judge framed an issue on the point of jurisdiction and after hearing the parties decided that he had no jurisdiction to try the suit and he directed the appellant to take back the plaint. Hence, this appeal.

(3.) It is urged from the side of the appellant that Order 14, Rule 2 of the Code permits the Court to try an issue of law only and not a mixed issue of law and fact. It is argued that the learned trial Court made a mistake by deciding the issue on jurisdiction which could not be decided in this case without entering into the question as to whether the disputed business at Kalyani was a branch of the partnership business at Bijpur which was a question of fact pure and simple and which required consideration of evidence to decide it which was not permissible under O.14, R.2 of the Code. It is also urged that by deciding that the business at Kalyani was not a branch of the partnership business at Bijpur, the learned trial Judge has practically disposed of the suit on merits which he had no jurisdiction to do while disposing of an application under O.14, R.2 of the Code. It is urged on the other hand from the side of the respondent that it is permissible to take into consideration facts of the case for deciding the issue on jurisdiction and that, therefore, the learned trial Judge made no mistake by taking into his consideration the materials on record in deciding the issue on jurisdiction as a preliminary issue.