Nebh Raj and others vs Sunder Dass and another

Rajinder Nath Mittal, J.—This revision petition has been filed by defendants 1 to 3, against the order of the Subordinate Judge 1st Class, Panipat, dated August 28, 1978.

Briefly the facts of the case are that the plaintiff instituted a suit against the defendants for the possession of shop No 536 and for recovery of Rs. 900/- as compensation for its use and occupation, from January 26, 1966 Later he found defendant Nos. 1 and 2 in the occupation of the said shop from which he concluded the defendant No. 4 sublet the shop to defendant Nos. 1 and 2. A notice was given by him to the defendants in reply to which defendant Nos. 1 and 2 said that they had taken the shop on rent directly from the plaintiff, as tenants, and as such they are not liable to ejectment on the allegations of the plaintiff. Ha further pleaded that in view of the standi taken by the defendants, the only inference was that defendant Nos. 1 and 2 were in illegal possession of the shop. He, therefore, instituted a suit for possession on the basis of title.

In the written statement, defendant Nos. 1 to 3 contested the suit and Inter alia pleaded that defendants Nos. 1 and 2 were tenants under the plaintiff and that the Civil Court had no jurisdiction to try the suit.

On the pleadings of the parties, the trial Court framed nine issues. Issue No 2 was regarding relationship between the plaintiff and defendant Nos. 1 and 2, and Issue No. 5 regarding jurisdiction. The said issues are as follows:--

2 Whether defendant Nos. 1 and 2 are tenants over the shop in dispute under the plaintiff, as alleged ?

Whether the Civil Court has no jurisdiction to bear and decide the matter ?

The trial Court treated issue No 5 as a preliminary one Sub equity vide impugned order, it came to the conclusion that it was proper that the issue should be decided alongwith the other issues. Defendant Nos. 1 to 3 have come up in revision against the order of the Subordinate Judge to this Court.

It is contended by the learned counsel for the petitioner that plea of the plaintiff was that he had given the shop in dispute to respondent No 4 who had sublet it to defendant Nos. 1 and 2. He urges that if defendant Nos. 1 and 2 were sub-tenants in the premises then according to the provisions of Haryana Rent Restriction Act, the respondents were not liable to ejectment by institution of suit in a civil Court. According to the counsel, issue No. 5 should have been decided by the Court, as a preliminary issue.

I have heard the learned counsel for the parties at a considerable length, but regret my inability to accept the contention. It will be proper at this stage to refer to the pleas taken by the plaintiff in the plaint. In paragraph 9, he has stated that in the face of the stand taken by defendants that they never obtained possession of the shop from defendant Nos. 1 and 2 on the shop in dispute is absolutely illegal and unauthorised. It is further averred that the plaintiff is therefore, legally entitled to dispossess the said defendants from the shop in suit on the basis of the title. From a perusal of the aforesaid plea it is clear that the plaintiff has claimed possession of the suit property on the basis of the title and not sub-tenancy. It cannot be disputed that if defendant Nos. 1 and 2 are tenants as claimed by them the Civil Court will have no jurisdiction to try the suit. The main question, therefore, that arises is whether or not defendant Nos. 1 and 2 are tenants in the shop in dispute. An issue was been framed in that regard which has, been reproduced above. Therefore, issue Nos. 2 and 5 are inter-connected A reference ha been made to Order 14, rule 2 of the Civil Procedure Code, wherein it is stated that where issues both of law and fact arise in the same suit, and the Court is of the opinion that the case or any part there of may be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court and for that purpose may if it thinks fit, postpone the settlement of the other issues until after that issue has bean determined, and may deal with the suit in accordance with the decision on that issue It is urged by the learned counsel for the petitioners that in view of Order 14 Rule 2, the issue of jurisdiction should be decided as preliminary issue The issue of jurisdiction in the present case cannot be said to be purely an issue of law. It is an issue which involves mixed questions of fact and law. Moreover, as stated earlier issue Nos. 2 and 5 are inter-linked. In the aforesaid circumstances I am of the opinion that the learned Court rightly held that it would be proper if issue No 5 was decided along with other issues framed in the case. There is, therefore, no scope for interference with the impugned order in revision.

For the reasons recorded above, the revision petition fails and the same is dismissed. The costs in the revision petition shall be the costs in the cause. The parties are directed to appear in the trial court on February 5, 1979.