- (1.) This is a petition under Section 115 of the Code of Civil Procedure against the order of the learned Sub-Judge Ist Class, Panipat, dated August 3, 1978, declining to treat the issue relating to the jurisdiction of the Court as a preliminary issue.
(2.) The trial Court observed that the said issue depends on a question of fact on which evidence has to be led by the parties and, therefore, the same cannot be treated as the preliminary issue under Order 14 Rule 2 of the Code of Civil Procedure. The correctness of this order has been challenged by the petitioner on the ground that as the issue relates to the jurisdiction and the suit can be disposed of finally on its decision, the issue can be treated as the preliminary issue in spite of the fact that some evidence has to be led in proof thereof. Reliance for this contention has been placed on the following observations in Ramdayal Umraomal, Partnership Firm, Raipur Vs. M/s Pannalal Jagannathi, Partnership Firm, Dhamandi, Madasapur, 1978 AIR(MP) 16 :- "Where the question is a pure question of law or a mixed question of law and fact and may result in the disposal of the suit it should be decided as a preliminary issue. Where the question is a pure question of law but which may not dispose of the entire suit, it is not necessary to decide it first and it may await the stage of the final decision of the suit. Where the question of law is mixed with facts, on which facts there are independent issues of fact to be tried, the decision on the question has to be postponed and it cannot be tried first as a preliminary issue." I am, however, unable to follow this decision in view of the judgment of the Supreme Court in Major S.S. Khanna, V. Brig. F.J. Dhillon, 1964 AIR(SC) 497 wherein it was observed that the jurisdiction to try issues of law apart from the issues of facts, may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issue of law alone but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as the preliminary issues. This judgment was noticed in Messrs Ramdayal Umraomal's case but there is no discussion as to why it was not applicable to the facts of that case.
(3.) The learned counsel for the petitioners then relied on two Single Bench decisions of this Court in Resham Lal and others Vs. Anand Sarup and another, 1974 AIR(P&H) 97and Babu Ram and another Vs. Pakiza Begum and others,1972 PunLR 848. The former decision relates to the Court-fee matter and, therefore, would not be any help because the Court is not entitled to proceed with the suit unless it is held that the plaint is properly stamped. In the second decision, of course, it was held that the Court is empowered to try an issue as the preliminary issue even if some evidence has to be led to prove that issue. But this decision runs counter to the Supreme Court decision noticed above. In spite of this decision in the two latter decisions in Hardwari Lal Vs. Pokhar Mal and others, 1978 80 PunLR 252, and Nebh Raj and others V. Sunder Dass and another, 1979 81 PunLR 131 again the view taken is that an issue cannot be tried as the preliminary issue if it involves mixed question of law and fact. The former relates to the Court-fee matter and the latter to the jurisdiction of the Court. In view of the latter decisions and the decision of the Supreme Court noticed above, I am of the view that the issue which involves a mixed question of law and fact cannot be tried as the preliminary issue under Order 14, Rule 2 of the Code of Civil Procedure even if it relates to the jurisdiction of the Court.;