- (1.) The present writ petition has been preferred under Article 227 of the Constitution of India against the order, passed by the Munsif, Jamshedpur dated 19th May, 2010 below an application preferred by the original Defendant under Order XIV Rule 2 of the Code of Civil Procedure in Title Suit No. 114 of 2009 whereby, preliminary issues raised by the present Petitioner (original Defendant No. 3) have not been accepted to be decided by the trial court mainly on the ground that these preliminary issues required cogent and convincing evidence to be led before the trial court and therefore, they cannot be decided as preliminary issues.
(2.) Having heard counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts and reasons:? (i) It appears that the present Petitioner is an original Defendant No. 3 in Title Suit No. 114 of 2009 instituted by Respondent No. 1. (ii) It further appears from the facts of the case that the original Plaintiff, who is Respondent No. 1, is claiming title upon the suit property. No reply has been filed by the Petitioner in Title Suit No. 114 of 2009. (iii) It appears that Defendant No. 3 i.e. the present Petitioner had instituted one Title Suit No. 95 of 2008 in which he valued the suit at about Rs. 50,00,000/? and therefore, raised a preliminary issue in Title Suit No. 114 of 2009 preferred by present Respondent No. 1 that the suit valuation should be decided first because the suit property is worth of Rs. 50,00,000/?. Moreover, the counsel for the original Defendant No. 3 has also relied upon the sale deed dated 25th April, 2008 entered into an agreement between the original Plaintiff i.e. present Respondent No. 1 and original Defendant Nos. 2 and 3 in Title Suit No. 95 of 2008. (iv) Counsel for the original Plaintiff vehemently submitted that in Title Suit No. 114 of 2009, no written statement has been filed by the present Petitioner, who is original Defendant No. 3, though they appeared in the year, 2009 itself before the trial court and as per the Order XIV Rule 1(1) as well as Sub Rule 5 without filing a written statement, the preliminary issues, which are raised by the original Defendant cannot be decided as such. It is further submitted by the counsel for the original Plaintiff that Plaintiff is not accepting the valuation of the suit property worth of Rs. 50,00,000/? and is denying the same. (v) It is further submitted by the counsel for the original Plaintiff that he is also denying the agreement, which is alleged to have been entered into, between predecessor in title of the Plaintiff and predecessor in title of Defendant No. 3. This fact has been stated in several paragraphs of the plaint as well as in paragraph no?23(c) of the plaint of Title Suit No. 114 of 2009. Counsel for the original Plaintiff has also submitted that similarly, if the written statement is filed by the present Petitioner i.e. original Defendant No. 3 and if they are relying upon sale deed dated 25th April, 2008, proper reply will be given in the Title Suit No. 114 of 2009, but, the fact remains that no such sale deed dated 25th April, 2008 has been referred to in any written statement in Title Suit No. 114 of 2009. Plaintiff is also denying the execution of any such sale deed dated 25th April, 2008 much less, by any Power of Attorney Holder of the original Plaintiff. (vi) It is further submitted by counsel for the original Plaintiff that original Defendant No. 3 has unnecessary relied upon so called or alleged sale deed and making hue and cry. In fact, no such sale deed has ever been executed by the original Plaintiff much less, sale deed dated 25th April, 2008, but, there is no question of raising this plea at this stage whatsoever arises because no written statement has been filed by the present Petitioner, who is original Defendant No. 3 though they have appeared in the year, 2009 in Title Suit No. 114 of 2009. A doubt has also been raised by the counsel for the Petitioner that perhaps, stage to file written statement has also been gone as per the provisions of the Code of Civil Procedure. It is further submitted by the counsel for the original Plaintiff that original Defendant Nos. 1, 2 and 3 are acting in collusion with and are creating fabricated documents, but, let there be a proper written statement so that accurately, the allegations can be denied by the original Plaintiff and therefore, no error has been committed by the trial court in dismissing the application raising preliminary issues. (vii) Looking to the impugned order, passed by the trial court it appears that the preliminary issues raised by the original Defendant No. 3 in Title Suit No. 114 of 2009 are highly disputed question of facts. Merely because Defendant No. 3 had instituted Title Suit No. 95 of 2008 with valuation at Rs. 50,00,000/? cannot tantamount to an admission of fact by the Plaintiff in Title Suit No. 114 of 2009 that the suit valuation is worth of Rs. 50,00,000/?. Similarly, the so called sale deed dated 25th April, 2008, which is relied upon by original Defendant No. 3 is false and fabricated documents, as per submission made by the counsel for the Plaintiff. Had there been a written statement filed by original Defendant No. 3, there would have a proper denial by the original Plaintiff or there may be an amendment application in the plaint itself.
(3.) In view of these facts, no error has been committed by the trial court in dismissing the application raising preliminary issues by Defendant No. 3 under Order XIV Rule 2 of the Code of Civil Procedure. There being no substance in this writ petition. Hence, the same is, hereby, dismissed.;