Khamadevi vs Ushadevi and Others

Arun Bhansali, J.—This writ petition under Article 226 and 227 of the Constitution of India is directed against order dt. 01.10.2014 passed by Board of Revenue, Ajmer (''Board''), whereby, the revision petition filed by the petitioner against order dt. 12.06.2014 passed by Sub Divisional Officer, Balotra (''SDO'') has been dismissed. The plaintiffs-respondents filed a suit for declaration, partition and permanent injunction; a written statement was filed by the defendant-petitioner; based on the pleadings of the parties, issues were framed.

An application under Order XIV, Rule 2 CPC was filed by the petitioner seeking decision on issue Nos. 4 and 7 as preliminary issues.

The SDO by his order dt. 12.06.2014 came to the conclusion that issues were framed on 15.12.2009, whereafter, the same were amended on 10.05.2011; after the affidavits were filed by the plaintiffs, on account of failure of the defendant to cross-examine, the right to cross-examine the defendant was closed; however, on an application made by the defendant, on costs, opportunity to cross-examine was granted, which was availed and the cross-examination was completed on 13.09.2012; after several opportunities for leading evidence, the present application has been filed and, therefore, it was not justified to fix the matter for hearing on the issues and the issues said to be preliminary were not pure issues of law and were mixed issues of law and fact, which could only be decided after evidence of the parties.

The Board, on a revision filed by the petitioner, reiterated the findings recorded by SDO and dismissed the revision petition.

Learned counsel for the petitioner submitted that both the authorities below were not justified in dismissing the application, inasmuch as, the issues were pure issues of law and should have been decided as preliminary issues and, therefore, the orders passed cannot be sustained.

I have considered the submissions made by learned counsel for the petitioner.

As noticed hereinbefore, the issues were framed way back on 15.12.2009/10.09.2011, whereafter, the evidence of the plaintiff was concluded and after seeking several adjournments, the present application was filed; the purpose of provisions of Order XIV, Rule 2 CPC essentially is to cut short the controversy, in case, the suit can be disposed of on decision of preliminary issues; however, the petitioner did not take any steps for getting the so called legal issues determined earlier and waited till the evidence was led by plaintiffs on all the issues and thereafter filed the application after seeking several opportunities. The action of the petitioner cannot be said to be bona fide and appears to be only an attempt to some how keep the proceedings pending; further, the issues said to be preliminary by the petitioner also cannot be said to be pure questions of law. In view of the above, the orders passed by the authorities below do not call for any interference. The writ petition has no substance and the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs.