- (1.) The present petitioner is the original defendant in Eviction Suit No. 33 of 2007, who had raised preliminary objections under Order XIV Rule 2 of the Code of Civil Procedure, 1908 to the effect that though the petitioner is a tenant or a lessee in the suit property but he is possessing the property without any registered lease deed and, therefore, the trial court ought to decide the preliminary issue as to whether the suit is tenable at law or not on his application under Order XIV Rule 2 of the Code of Civil Procedure (Annexure-4 to the memo of petition) and as this application has been dismissed by the trial court vide order dated 19.09.2008, the present writ petition has been preferred under Article 226 of the Constitution of India.
(2.) Having heard learned Counsel appearing 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 reasons that: (i) It appears that the present petitioner is the original defendant and the present respondent is the original plaintiff, who has instituted Eviction Suit bearing Eviction Suit No. 33 of 2007 mainly on the ground of personal necessity and expiration of the lease period. The suit is going on before the trial court and the evidence is also at the verge of completion; (ii) It appears from the question raised by the present petitioner (original defendant) that it involves a mixed question of law and fact and, therefore, the said application preferred under Order XIV Rule 2 of the Code of Civil Procedure has rightly been brushed aside by the trial court and looking to the evidence, the application raising objection under Order XIV Rule 2 of the Code of Civil Procedure will be decided by the trial court at the time of final hearing of the suit. Otherwise also the evidence is going to be completed in near future as per the submission made by both the counsels.
(3.) In view of the aforesaid facts, no error has been committed by the trial court in dismissing the application preferred by the present petitioner under Order XIV Rule 2 of the Code of Civil Procedure, much less an apparent on the face of the record and there is no perversity in the order, on the contrary the order is in consonance with the facts and law.;