- (1.) Petitioner-defendant by this petition under Articles 226 & 227 of the Constitution seeks to challenge order impugned dated 29 thMay, 2014 (Annex.11) passed by Additional District Judge No.5, Udaipur (for short, 'learned Court below'). By order Annex.11, learned Court below has declined joint prayer of the petitionerdefendant and respondent-State of Rajasthan for deciding Issues No.25, 26 and 31 as preliminary issues by rejecting their applications under Order XIV Rule 2 read with Section 151 CPC.
(2.) Succinctly stated the facts of the case are that first respondent-plaintiff filed a suit for damages against the State of Rajasthan, Municipal Council Udaipur and the petitioner quantifying total amount of damages to the tune of Rs.1,76,33,500/- (Rupees One Crore Seventy Six Lacs Thirty-Three Thousand Five Hundred) inter alia on the ground that the petitioner and other defendants dismantled booking windows and damaged the business of the respondent at Sukhadia Circle, Udaipur. It is further averred in the plaint that petitioner and other defendants have closed the business of the firm in gross violation of lease-deed dated 4 th of May, 1992 issued by Municipal Council Udaipur and in defiance of stay order dated 11 th of June, 1996 passed by this Court. The petitioner submitted his written statement incorporating many objections. Besides that, the other defendants also filed written statements reiterating some of the objections incorporated in the written statements of the petitioner. Thereafter petitioner filed subsequent pleadings to the written statement of the petitioner on 10 th of May, 2002. The learned Court below on the basis of pleadings of the rival parties settled in all 32 issues on 28 th of August, 2003. The proceedings in the suit progressed at snail's pace inasmuch as on various occasions numerous applications were submitted by the rival parties. Be that as it may, the first defendant State of Rajasthan laid an application under Order VI Rule 17 CPC for amending the written statements and same is allowed by the learned Court below by its order dated 9 th of January, 2014. The amendment application of the first defendant, State of Rajasthan, was allowed in the suit when proceedings in the suit were at the stage of evidence of plaintiff and at that point of time an application under Order XIV Rule 2 read with Section 151 CPC was also pending which was laid at the behest of the petitioner besides application of the State of Rajasthan with identical prayer. In his application, petitioner has prayed for deciding Issues No.25, 26 and 31 as preliminary issues. Precisely in the application under Order XIV Rule 2 CPC, the petitioner has set out a ground that all these three issues goes to the root of the matter and therefore can be decided as preliminary issues as these issues relate to a bar to the suit created by law for the time being in force. For substantiating his cause in the application for deciding these issues as preliminary issues, the petitioner has laid emphasis on some of the vital facts viz that the suit is based on breach of contract and the so-called contract was between the respondent-plaintiff and the Municipal Council Udaipur. Further elaborating on this issue, it is urged in the application that as there was no privity of contract between respondent-plaintiff and the present petitioner as well as defendant State of Rajasthan both the of them are having no casual connection with alleged contract and that being so no question of breach of contract vis- -vis the petitioner and the respondent-defendant No.1 has arisen. On the part of the District Administration it is also pleaded that appropriate actions were taken in compliance of order passed by the competent authority under Section 133 Cr.P.C. The question relating to non-serving of notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short, 'Act of 1959') against the Municipal Council Udaipur and the notice under Section 80 CPC to the petitioner as well as State of Rajasthan is also incorporated as a ground for persuading the learned Court below for deciding all these issues as preliminary issues.
(3.) Learned Court below after hearing the arguments, by the order impugned, rejected the application, observing that all these issues are founded on mixed questions of law and fact and therefore, cannot be decided as preliminary issues.;