- (1.) D. S. Sinha, J. Heard Sri Shiv Shankar Mishra, holding brief of Sri V. K. Shukla, learned counsel for the defendant- applicant.
(2.) THE half portion of the agricultural land of the plaintiff-opposite party No. 1 bearing No. 209 measuring 9 Bighas 6 biswas and 8 biswansis situate in village Wazirabad, tehsil Jansath, district Muraffarnagar, was auctioned on 1st December, 1980 in connection with the realisation of Sales Tax dues against him. THE applicant is the auction purchaser of the land. Alleging that the entire proceedings regarding the auction of the disputed land were fictitious and fraudulent, the plaintiff-opposite party No. 1 has instituted in the Court of Civil Judge, Muzaffarnagar, Original Suit No. 79 of 1982 praying for declaration that the auction proceedings relating to the disputed property held on 1st December, 1980 be declared illegal, void and ineffective. The defendant-applicant figures in the suit as defendant No. 3 while opposite parties Nos. 2 and 3 before this Court figure as defendants No. 1 and 2. After the written statements were filed by the defendants in the suit issues were settled. Later on the defendant-appellant filed additional written statement raising the plea of bar against maintainability of the suit relying upon the provision of the U. P. Public Moneys (Recovery of Dues) Act, 1972 and of the U. P. Zamindari Abolition and Land Reform Rules, 1952. Two additional issues regarding the maintainability of issues were framed on 16th February, 1989 accordingly. The defendants prayed the Court to decide the additional issues as preliminary issues. By the order, dated 16th February, 1989 the prayer has been rejected thence this revision.
(3.) SUB-rule (2) of Rule 2 of Order XIV of the Code of Civil Procedure, 1808 hereinafter called the Code, provides that where the issues both the law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. The Court below has held that in view of the fact that the suit is one for declaration of the auction proceedings to be illegal, void and ineffec tive, the decision on the additional issues would necessarily involve pro duction and consideration of evidence, and such it would be desirable to dispose of these issues along with the other issues in the suit, and has directed the parties to proceed with the production of the evidence. In holding that it would be appropriate to decide the additional issues along with other issues, on the facts and in these circumstances of the case, the Court below, in the opinion Court, has not acted either illegally or with any material irregularity in exercise of its jurisdiction. This part, the impugned order, if so varied or reversed, would not finally dispose of the suit or other proceedings therein; or if the order is allowed' to stand would not occasion a failure of justice or cause any irreparable injury to the defendant-applicant. In such a situation the second proviso to Section 115 of the Code, as applicable in the State of Uttar Pradesh, bars the exercise of revisional jurisdiction by this Court.;