Magraj vs Gram Panchayat Keru And Ors

The present writ petition is directed against the order dated 18.01.2019, passed by Additional Civil Judge (Senior Division) No.5, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as "the Trial Court"), in Civil Misc. Case No.81/2013, by which an application filed by the respondent No.2 has been allowed.

Succinctly narrated, the facts appertain to the present case are that the petitioner filed a contempt petition under Order XXXIX Rule 2A of the Code of Civil Procedure against the defendants, alleging non-compliance of the order dated 13.06.2012.

During the pendency of the contempt petition, the defendants filed a reply and on the basis of the pleadings of the parties, following three issues were framed by the Trial Court:

"1- आया अप्रार्थीगण द्वारा न्यायालय द्वारा पारित आदेश दिनांक 13.06.2012 की अवहेलना करते हुये अवैध निर्माण व मुर्ति का निर्माण कर अवमानना की है।

प्रार्थी

2- आया प्रार्थी को हस्तगत प्रार्थना पत्र अंतर्गत आदेश 39 नियम 2ए प्रस्तुत करने का कोई लोकस स्टेण्डाई नहीं है।

अप्रार्थी

3- अनुतोष?"

Subsequent thereto, an application dated 14.12.2015 came to be filed by the respondents, with a request that issue No.2, which is a pure question of law be decided as a preliminary issue.

The learned Trial Court, vide order impugned, allowed the application dated 14.12.2015 filed by the respondents and ordered that the issue No.2 will be decided as a preliminary issue.

Mr. Akshay Nagori, learned counsel for the petitioner, challenging the order dated 18.01.2019, contended that the learned Court below, has itself observed tshat "the issue No.2 is a pure question of fact"; if that be so, he argued that the same being a question of fact, cannot be decided as a preliminary issue.

In support of his arguments, learned counsel invited attention of the Court towards proviso to order XIV Rule 2 of the Code of Civil Procedure and argued that the questions of fact, which require leading of evidence, cannot be decided as a preliminary issue. While submitting so, he read the relevant para of the order, which is being reproduced herein:-

"उल्लेखनीय है कि द्वितीय विचारणीय बिन्दु के अनुसार यह विनिश्चय किया जाना है कि प्रार्थी को कन्टेम्ट ऑर्डर 39 नियम 2-ए सी.पी.सी. की मेंटेनेब्लिटी को ही चुनौती दी गई। ऐसी स्थिति में स्पष्ट है कि विचारणीय बिन्दू संख्या 2 pure question of fact है। उक्त बिन्दू mix question of fact and law कतई नहीं है, लिहाजा साक्ष्य लिये जाने से पूर्व उक्त प्रार्थना पत्र की maintainability को निर्धारित किये जाने हेतु प्रारम्भिक बिन्दू (preliminary issue) के रूप में इसकी सुनवाई किया जाना उचित प्रतीत होता है।"

Heard learned counsel for the petitioner and perused the order impugned.

A simple look at the above quoted para of the order of the Trial Court shows that there is slip of pen or typographical error in the order impugned. If the order including the relevant para of the impugned order dated 18.01.2019 is read in its entirety, there remains no room for ambiguity that the learned Trial Court had an intention to write or convey "pure question of law". It was simply an inadvertent slip of pen.

Be that as it may, this Court is of the considered opinion that issue No.2, as framed by learned Trial Court, is a pure question of law and can be decided as preliminary issue, at the threshold.

In support of the argument, learned counsel for the petitioner relied upon the following two judgments :- (1) Ramrameshwari Devi & Ors. Vs. Nirmala Devi & Ors.; 2011(3) Civil Court Cases 295 (S.C.) and (2) Shyam Lal Vs. State of Rajasthan & Anr.; RLW 1999 (I) Raj.

Both these judgments rule that the issue, which involves determination of fact and law, cannot be decided as preliminary issue, as a general proposition regarding preliminary issue.

A perusal of the relevant para No.28 of the judgment of Hon'ble the Supreme Court in Ramrameshwari Devi (supra) does not support petitioner's case, inasmuch as, Hon'ble the Supreme Court has held therein that the issue, which neither relates to bar created by any law, nor the jurisdiction of the Court, the same should not be treated as a preliminary issue.

The issue No.2 as framed may be, does not relate to the jurisdiction of the Court as such, but hits at the very maintainability of the contempt petition at petitioner's instances. As such, in considered opinion of this Court, the same can be decided as a preliminary issue.

The other judgments of this Court reported in 1963 RLW 101 (Chhiga Ram Vs. Nihal Singh) is not of much relevance in the present set of facts, inasmuch as, in this judgment the Court has held that Trial Court and Appellate Court are expected to decide all the issues.

Apart from these judgments, learned counsel for the petitioner has relied upon other judgments of Hon'ble the Supreme Court in 2013(2) Civil Court Cases 668 (S.C.) (Ramji Gupta & Anr. Vs. Gopi Krishan Agarwal (D) & Anr.) and RLW 1988(1) 276 (Jodh Singh Vs. Nar Singh).

Having gone through the judgments aforesaid, this Court finds that the same also do not help the case of the petitioner.

Needless to state that when an issue raised about locus standi of the petitioner, it is generating a very question of law not dependent upon leading evidence, hence the same can be decided as a preliminary issue.

That apart, if the learned Trial Court has exercised its discretion and has taken a call to decide the Issue No.2 as preliminary issue, this Court does not find any irregularity; illegality or error of jurisdiction, so as to warrant interference under Article 227 of the Constitution of India.

No prejudice has been caused to the petitioner, as a result of the impugned order. Hence writ petition is not maintainable in light of the judgment of Hon'ble the Supreme Court in Shalini Shyam Shetti & Ors. Vs. Rajendra Shankar Patil; (2010)8 SCC 329, wherein Hon'ble the Supreme Court has held as under:-

"(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised."

The writ petition is, thus, dismissed.

The Stay Petition No.4551/2019 also stands dismissed.