ANJANI KUMAR, J. - (1.) HEARD learned counsel appearing on behalf of the revisionist and Sri C. K Rai learned counsel appearing on behalf of the contesting respondents.
(2.) LEARNED Counsel appearing on behalf of the revisionist argued that the order impugned in the present revision is an order whereby the trial Court has directed to decide the issue Nos. 16 and 18 together which were preliminary issues, before proceeding for trial. It is further submitted that both the issues relate of the jurisdiction of the Court, therefore, the view taken by the trial Court on these two additional issues, which raise the question of jurisdiction and issue of law, the same can be connected by revisional Court in exercise of power under Section 115 of the Code of Civil Procedure by means of present revision. Learned counsel for the revisionist contended that from the order sheet it appears that the Court has already expressed its opinion to decide these two issues, therefore, according to the provision of Order XIV of the Code of Civil Procedure, subsequently it cannot decline to decide these issues as preliminary issue on the ground that all the issues will be tried and decided together. This revision has been filed under the provision of Section 115 of the Code of Civil Procedure. The provision of Section 115 of the Code of Civil Procedure has been amended in the State of U.P. The amended provision, referred to above is reproduced below 115. Revision. - The High Court, in cases arising out of original suits or other proceedings [of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U.P Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification. and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit: Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall to competent to make an order under this section : Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding as issue, made in the course of a suit or other proceeding, except where, - (i) the order, if so varied or reversed would finally dispose of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made: [Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same.]
(3.) THE second proviso to Section 115 of the Code Civil Procedure, which is relevant for the purposes to decide this question, is reproduced below: Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding as issue, made in the course of a suit or other proceeding, except where - (i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made: ;