Shri T.P. Sanghvi vs Shri Om Parkash and Others

G.C. Garg, J.—The plaintiffs filed a suit for the recovery of Rs. 99,500/- on the basis of the goods supplied under a contract dated 14.5.1982 to the defendant-petitioner. The suit was contested by the petitioner on various pleas amongst others that the civil Court at Ludhiana had no jurisdiction to try the suit in view of the contract entered into between the parties.

The trial Court framed the following issues arising out of the pleadings of the parties:-

Whether the goods supplied by the plaintiff vide bill No. 28.22 dated 11.6.1982 were supplied as consideration of loss suffered by the day ? OPD.

Whether this Court has jurisdiction to try the suit ? OPD.

To what amount, if any, the plaintiff is entitled to recover including interest ? OPP.

Relief.

The case was thereafter posted for evidence of the defendant on issue Nos. 1 and 2. The plaintiffs and the defendant concluded their evidence and the case was posted for rebuttal evidence of the defendant though right of the defendant to produce rebuttal evidence was questioned.

At that stage, the defendant-petitioner served an application under Order 14 Rule 2 of the CPC praying therein that the issue of jurisdiction i.e. issue No. 1 be treated at a preliminary issue. The trial Court vide order under revision declined to grant the prayer of the defendant-petitioner and posted the case for rebuttal evidence on issue No. 3 and for arguments. It is against this order that defendant No. 1 has filed the present revision petition.

The learned counsel for the petitioner has vehemently contended that issue No. 1, which relates to the jurisdiction of the Court ought to have been treated as preliminary issue irrespective of the fact that some evidence was required, for deciding the same. The learned counsel in support of his submission cited M/s. Vaz Forwarding Pvt. Lid. Bombay v. M/s. Punjab Tanneries Limited Nakodar Road, Jullundur (1982) 84 L.R. 191 and Daljit Singh v. Mr. Joginder Singh Sekhon (1985) 87 L. R. 261. It has been held in Vaz Forwarding''s case (supra) that the intention of the legislature seems to be that as and when an objection as to the territorial jurisdiction of the Court to try a suit is raised the same should be treated as a preliminary issue being a question of law. The plaintiff, who has chosen his own forum by filing a suit, could not be allowed to frustrate the defendant''s case by claiming that the said issue requires evidence thereon. But this authority has no application to the facts of this case as both the parties have already led their respective evidence on all the issues and the suit is pending adjudication for the last more than six years. In Daljit Singh''s case (supra) it was held that if the parties want to lead evidence on an issue, that ceases to be an issue of law and that discretion has been given to the Court to try the issue as a preliminary issue or not according to the circumstances of each case. This case as well does not advance the case of the petitioner in any way. Earlier also, the question of treating an issue as preliminary issue arose before this Court in Shri Mahabir Parshad v. The Punjab Saltpetre Refinery, Pvt. Ltd. 1985 L. J. 175 and it was held therein that the preliminary issue can only be that which can dispose of the whole suit on a question of law and on which no evidence is required to be led. In the present case the counsel for the petitioner has stated that some evidence is required to be led on the issue sought to be treated as a preliminary issue.

It is manifest from the record that the parties have already concluded their respective evidence and now the suit is stated to be at the stage of hearing final arguments. Therefore, now at this stage, in my view, it will not be correct to order to treat issue No. 1 as a preliminary issue as it will also be against the very object of the provisions of Order 14 Rule 2 of the Code of Civil. Procedure. Concurrently, the issues in the suit were framed as well as on 2.12 1985 and it was open to the defendant at that time to make a prayer for treating the issue of jurisdiction of the Court as a preliminary issue.

In view of the observations made above, I do not find any merit in this revision petition which is dismissed. No costs.

Since further proceedings before the trial Court were stayed by this Court, the petitioner through his counsel is directed to appear before the trial Court on 20.5.1991 far further proceedings. That the suit is pending for the last about six years, the trial Court is directed to dispose it of as expeditiously as possible.