K.N. Misra, J. - (1.) THE Plaintiff Respondent Vijai Ram Srivastava filed a suit for dissolution of marriage under Section 12 of the Hindu Marriage Act in the Court of IVth Additional District Judge, Faizabad alleging that the Defendant -revisionist No. 1 Smt. Reena Srivastava was marred to the Plaintiff on 9 -12 -1982 at Sitapur. It was, further contended that in the marriage the girl was changed and instead of marrying the girl which was shown to him, the Plaintiff was married to Defendant -revisionist Smt. Reena Srivastava. The Plaintiff thus asserted that the marriage stood vitiated by fraud having been practised by the Defendants and on this ground the annulment of the marriage was sought by the Plaintiff. It was further asserted that after the marriage Defendant -revisionist No. 1 came to reside with the Plaintiff at Faizabad and since at first sight the fraud was detected by the Plaintiff, she was asked to go back to her father's place and she left the house of the Plaintiff on 11 -12 -1982 to reside at her father's place, The suit was contested by the Defendants and it was asserted that no fraud was practised on the Plaintiff and it was vehemently denied that the Defendant was not shown to the Plaintiff before the marriage and some other girl was shown. Besides taking other pleas, a plea regarding maintainability of suit before the Court of IVth Addl. District Judge, Faizabad was also taken and it was asserted that since after the marriage was solemnised at Sitapur, the parties lived as husband and wife at Riwari in Hariyana State, and, as such, the suit is not, maintainable in court at Faizabad. The trial court while framing issues in the suit, an issue No. 1 regarding jurisdiction was also framed which reads as follows: Issue No. 1 : - -Whether the court at Faizabad has no jurisdiction to try the instant suit?
(2.) APPLICATION (22/C) was moved by the opposite party for treating issue No. 1 as a preliminary issue and that it be decided as such. This application was rejected by learned District Judge by the impugned order dated 24th May, 1984 observing that since this question involves determination of facts as well, and, as such, this issue cannot be taken up as a preliminary issue. Aggrieved by this order, Defendant Applicant has filed this revision petition in this Court. Learned Counsel for the revisionist urged that the learned trial court erred in not deciding this issue as a preliminary issue. He urged that even if evidence was required to be led for the decision on this issue of jurisdiction, the trial court should have proceeded to decide this issue as a preliminary issue after taking the evidence 'of parties on this score alone. I do not find any merit in this contention. In Major S.C. Khanna v. Brig F.J. Dillon : AIR 1964 SC 497 the Hon'ble Supreme Court held: Under Order 14, Rule 2 where issue both of law and of fact arise in the same suit, and the court is of opinion that the ase or any part thereof may be disposed of on the issue of law only it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. 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 issue. Normally all the issues in a suit 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. (emphasis supplied) In Estrela Batteries Ltd. v. Modi Industries Ltd. : AIR 1976 All 201 Hon'ble N.D. Ojha, J. observed: Where in respect of issues not raising the pure question of law but involving the mixed question of law and fact the finding of trial court that such issue cannot be decided as preliminary issue under Order 14, Rule 2 is not vitiated by any error within Section 115 and cannot be interfered with in revision. In Ramdayal Umraomal v. Pannalal Jagannath Ji : AIR 1979 M.P. 153 (Full Bench) Justice P.D. Mulye, J. speaking for the court observed: Where issue of jurisdiction is a mixed question of law and fact requiring recording of evidence, same cannot be tried as a preliminary issue. In Basti Ram Roop Chand v. Radhey Shyam Gulub Chand : AIR 1973 All 499 Hon'ble T.S. Misra, J. (as he then, was), referring to aforesaid decision of the Supreme Court observed: Under Order 15, Rule 2 the Court is bound to try as preliminary issue a question of law on which the entire suit may be disposed of But where the question is not purely of law or it is mixed question of law and fact, the Court has no jurisdiction to try the issue as a preliminary issue.
(3.) I have considered these decisions and I find myself in full agreement with the view taken therein. Since in the present case question of jurisdiction involves recording of evidence on the question of last residence of parties, I find that it will not be appropriate that the parties be required to lead evidence on the issue of jurisdiction alone for determination of that issue. By taking into. consideration the question of controversy raised in the written statement, I find that most of the persons who would be examined as witnesses in the case, would be speaking on all the points raised in the plaint and the written statement. It would thus not be proper to record evidence piecemeal first on the plea of jurisdiction and subsequently on other pleas raised by the parties in the plaint and the written statement. The question of jurisdiction if it involves determination of disputed facts would not deserve to be taken up as preliminary issue. In this view of the matter I find that the trial court has not committed any error in not determining this issue of jurisdiction as a preliminary issue as it involves mixed questions of fact and law, and would require recording of evidence on the disputed question.;