VEDPAL,J. - (1.) THIS revision under Section 115 of the Code of Civil Procedure has been filed by Revisionists-Defendants against the order dated 9.5.2006 passed by Shri Sanjeev Kumar, the then Civil Judge, Senior Division, Lucknow in Regular Suit No.46 of 2004 : Rajeev Sinha Vs. Dhampur Sugar Mills whereby application 56-C of the revisionists to decide issue no.7 as preliminary issue was rejected.
(2.) HEARD the learned counsel for the parties finally on this revision at this stage of admission. The facts in brief relevant for the decision of this revision are that the Regular Suit No.46 of 2004 was filed by the plaintiff (herein respondent) wherein several issues were framed. Issue no.7 was to the effect whether the present suit is maintainable. Both the parties led evidence in support of their respective pleadings and the suit was fixed for final argument. Thereafter, the defendants (herein revisionists) moved application 56-C to this effect that the issue no.7 be decided as preliminary issue before the final argument of the case. Objection of the plaintiff was to the effect that both the parties have closed their evidence and the suit is fixed for final arguments, therefore, at this stage it is not proper to decide issue no.7 as preliminary issue and whole issue can be decided at a time in the final judgment. The learned court below after hearing the parties on the application 56-C and the objections thereof, reached to the conclusion that since both the parties have adduced their evidence and the case is fixed for final argument, therefore finding shall be recorded on every issue and it will not be proper to decide the issue no.7 as the preliminary issue at this stage and accordingly he rejected the application 56-C. Feeling aggrieved with the said order, the defendants have filed this revision.
(3.) THE short question for determination of this revision is whether the impugned order suffers from jurisdictional error and can be interfered with in this revision. In order to reach to the right conclusion, it is necessary to go through the provisions of Order XIV Rule 2 C.P.C. and as amended vide Code of Civil Procedure Amendment Act, 1976 w.e.f. 1.12.1977, which reads as under : "Rule-2. Court to pronounce judgment on all issues (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule(2) pronounce judgment on all issues. (2).Where issues both of 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- "(a) the jurisdiction of the Court, or (b) 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." 6. It reveals from the perusal of the Order 14 Rule 2 C.P.C., quoted above that it is within the discretion of the court to decide which issue he should decide as preliminary issue and it is not mandatory for the court to decide the issue of jurisdiction or issue relating to maintainability of the suit as preliminary issue. Sub-rule (1) of Rule 2 mandates the Court that notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Order 14 Rule 2 of the C.P.C. was amended vide CPC (Amendment) Act, 1976 w.e.f. 1.2.1977 making it discretionary for the Court to decide the preliminary issues after taking evidence along with other issues. Thus, the intention of Legislature is clear that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues be avoided, as far as possible. If all the issues are decided at a time that may avoid unnecessary delay and multiplicity of the proceedings in relation to the deciding the preliminary issue. 7. In the instant case, application 56-C was moved by the defendants at the stage when both the parties have adduced their evidence and the suit was fixed for final argument. It is thus, apparent that the intention of the defendant was to avoid final argument of the case. The issue no.7 is an issue of fact as well as of law and involve appreciation of fact also. Thus when both the parties have adduced their complete evidence and the case was fixed for final argument, in the circumstance if the court held that all the issues shall be decided simultaneously after hearing final argument, he committed no jurisdictional error which may be interfered with in this revision. Impugned order does not suffer from any illegality or irregularity also. 8. In view of the above, the revision has no merit and is liable to be dismissed and is accordingly dismissed. Stay order dated 1.8.2008 is hereby vacated. The trial court is directed to proceed with the case, expeditiously.;