National Airport Authority vs Paradise Hotel and Restaurant

A.K. Patnaik, J.—This is a civil revision u/s 115 read with Section 151 of the CPC against the order dated 15.7.96 passed by the learned Assistant District Judge, Jorhat in Title Suit No. 42 of 1994. By the said order, the learned Assistant District Judge, Jorhat, has answered the preliminary issue regarding the jurisdiction of the Court at Jorhat to try the suit against the Petitioners.

Mr. K.N. Choudhury, learned Counsel appearing for the Petitioner states that the aforesaid suit was filed by the opposite party against the Petitioners claiming certain reliefs with regard to running of a Restaurant at Guwahati Air Port and it is well settled by the Courts that a suit for specific performance of contract can be instituted only in a court in whose territorial jurisdiction either the contract is made or a contract is to be performed. Mr. Choudhury submitted that a written statement had been filed in the aforesaid suit by the Petitioners as Defendants taking a plea that the Court at Jorhat did not have any territorial jurisdiction to try the suit as in the present case, the contract in question had been entered into at Guwahati and was to be performed at Guwahati.

Mr. P. Barthakur, learned Counsel for the opposite party, on the other hand, referred to the averments in the plaint and in particular para-1 of the plaint filed in the said suit in which it was stated that the cause of action for the suit arose at Jorhat within the jurisdiction of the Court at Jorhat on and from 14.6.93 when the learned Additional District Judge Jorhat passed the decree in terms of the Award in Arbitration Misc. Case No. 6/92. He further contended that it is for this reason that the learned trial court in the impugned order held that the Court at Jorhat had jurisdiction to try the suit.

I have carefully perused the impugned order dated 15.7.96 passed by the learned Assistant District Judge, Jorhat, in Title suit No. 42/94. It appears from the said order that the learned Assistant District Judge while trying the preliminary issue relating to jurisdiction raised by the Petitioners/Defendants has traversed into the pleadings in the plaint as well as in the written statement on different questions of fact and has finally recorded a finding that since the suit had been based on the decree of the learned Additional District Judge, Jorhat, making the Award of the Arbitrators a rule of the Court, the Court at Jorhat has jurisdiction to try the suit. In my considered opinion, the learned Assistant District Judge has completely lost sight of the provisions underlying Order 14, rule 2 of the CPC which relates to disposal of suit/case on a preliminary issue. Order 14, rule 2 of the CPC is quoted herein below:

Court to pronounce judgment on all issues. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of feet arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to:

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force; and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

The language of Order 14, Rule 2(1), CPC makes it clear that the court is required to pronounce judgment on all issues except in those cases which are covered under Order 14, Rule 2(2) Code Of Civil Procedure. The provisions of order 14, Rule 2(2) quoted above will further show that only where an issue is one of law and relates to jurisidiction of the court, or a bar to the suit created by any law for the time being in force, the court can try the same as a preliminary issue and pronounce judgment on such preliminary issue. In the present case, the issue raised by the Petitioner certainly relates to jurisdiction but it was not of law only. While the Plaintiffs pleading in para-15 of the plaint was that the cause of action for the suit arose within the jurisdiction of the Court at Jorhat on and from 14.6.93 when the learned District Judge, Jorhat passed a decree, the plea of the Petitioners/Defendants in their written statement is that the contract, if any, between the Plaintiff and the Defendants was to be executed at Guwahati and was also be performed at Guwahati. Such an issue relating to jurisdiction cannot be decided until the facts as pleaded in the plaint and/or written statement are established in course of trial by evidence adduced by the parties. Hence, the issue raised by the Petitioners/Defendants in their written statement may be one of jurisdiction but it cannot be disposed of preliminary because it was not merely one of law but a mixed question of law and fact. The provisions of Order 14, Rule 2, CPC quoted above makes it amply clear that such an issue relating to jurisdiction which involves not only a question of law but also question of fact cannot be decided preliminarily.

For the reasons stated above, I set aside the impugned order dated 15.7.96 passed by the learned Assistant District Judge, Jorhat and I direct that the aforesaid issue relating to jurisdiction raised by the Petitioners/Defendants in their written statement will be decided along with all other issues in the trial of the suit. Since the suit is of 1994, I further direct that the aforesaid suit shall be disposed of as early as possible, preferably within a period of six months from today. There shall be no order as to costs.