Smt. Samsunnessa vs Sher Khan and Others

Jyotirmay Bhattacharya, J.—This application under. Article 227 of the Constitution of India is directed against an order being No. 30 dated 3rd July, 2008 by which the defendant''s application under Order 14 Rule 2(2) of the CPC was rejected by the learned trial Judge on contest.

The plaintiffs/opposite parties herein filed a suit for eviction against the defendant/petitioner herein under the provision of the West Bengal Premises Tenancy Act, 1997. The defendant is contesting the said suit by filing written statement. The suit has already matured for hearing. When the said suit is fixed for cross-examination of the plaintiffs'' witness being P.W. 1, the defendant filed an application under Order 14 Rule 2 (2) of the CPC inviting the learned trial Judge to dispose of the suit by hearing the issue regarding jurisdiction of the Civil Court to try such a suit for eviction in view of the bar created u/s 8(3) of the West Bengal Thika (Acquisition and Regulation) Act, 2001, as a preliminary issue.

The defendant in her pleadings both in the written statement as well as in her said application contended that the plaintiffs are thika tenants in respect of the suit property. The defendant further claimed that the suit property is thika tenanted property and the defendant is a Bharatia under the thika tenants.

On the basis of the said pleadings, the defendant invited the learned trial Judge to dispose of the said suit on the aforesaid preliminary issue, as Section 8(3) of the said Act authorises only the Controller to try a suit for eviction of a Bharatia by the thika tenant in respect of a thika tenanted property.

The learned trial Judge rejected the petitioner''s said prayer by holding, inter alia, that since a disputed question of fact relating to the status of the parties with reference to the suit property is required to be considered in the suit, such issue cannot be decided separately by postponing the hearing of the other issues involved in the suit.

Being aggrieved and dissatisfied with the said order, the defendant/petitioner herein has filed the instant revisional application before this Court.

Heard Mr. Mukherjee, learned Advocate, appearing for the petitioner and Mr. Hossain, learned Advocate, appearing for the opposite parties. Considered the materials-on-record including the order impugned.

It is settled principle of taw that all the issues in the suit are required to be decreed at a time. No issue can be decided separately by suspending consideration of the other issues in the suit. The only exception is Order 14 Rule 2(2) of the CPC which provides that under certain circumstances, the Court may decide an issue as a preliminary issue by suspending consideration of the other issues in the Suit.

The decision of the Hon''ble Supreme Court in the case of Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, also makes it clear that sub-rule (2) of Order 14 Rule 2 of the CPC lays down that where issues both of law and of fact 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.

It goes without saying that the dispute as to whether the plaintiffs are thika tenants or not and further the issue as to whether the defendant is a Bharatia under such thika tenants or not and further as to whether the suit property is a thika tenanted property or not, are not pure question of law inasmuch as all such issues are required to be considered with reference to the evidence to be led by the parties in support of their respective pleadings. Such a disputed question of law cannot be decided as a preliminary issue under Order 14 Rule 2 (2) of the Code of Civil Procedure, in view of the decision of the Hon''ble Supreme Court as mentioned above.

As such, this Court does not find any illegality and/or infirmity in the order impugned. this Court is of considered view that the learned trial Judge was absolutely justified in rejecting the petitioner''s application under Order 14 Rule 2(2) of the CPC in the facts of the instant case. this Court does not find any merit in this revisional application.

The revisional application, thus, stands rejected.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties as early as possible.