V. Subramani vs Arumugham

Abdul Hadi, J.—The defendant whose I.A. No. 1263 of 1992 praying for trying issue No. 5 first as preliminary issue in the suit O.S. No.

406 of 1987 was dismissed, is the petitioner herein. The said issue no doubt raises the. question of pecuniary jurisdiction of the Court below to try

the suit on the ground that the suit has been properly valued.

The learned Counsel for the petitioner argues that the court below has not given reasons for passing the abovesaid order of dismissal and that

when the jurisdiction question is involved, Order 14, Rule 2(a) is attracted and the court below should have agreed to take up the abovesaid issue

as a preliminary issue to be tried before the other issues are tried.

But, first of all, it should be noted that the disposal of the said application did not involve any adjudication of any right or obligation of the parties

in controversy and that hence the order cannot be treated as ""case decided"" within the meaning of that term in Section 115, C.P.C. (Vide :

Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, , regarding the meaning of the term ""case decided"").

Therefore, this civil revision petition is not maintainable at all.

That apart, it cannot be said that the court below has not given any reason for passing the abovesaid order. The court below has pointed out

that even though the suit was filed in 1987 itself, the present application has been filed only about five years later in 1992. The written statement of

the petitioner which was filed in 1988 itself no doubt states in paragraph 13 as follows:

The suit is not properly valued and the court-fee paid by the plaintiff also not correct. This Court also has no pecuniary jurisdiction to deal with this

matter.

If really, the defendant wanted to have the trial of this issue first, he would have come forward with an application to that effect long back as soon

as the issues were framed in about 1988. Only after the suit has been listed for trial, the present LA. has been filed. So, it is clear, only to protract

the trial of the suit, the said I.A. has been filed. For this reason, the court below has rightly dismissed the application and it cannot be said that in

coming to the abovesaid conclusion on the abovesaid reasoning, the court below has erred in exercise of the jurisdiction. So, since there is no error

of jurisdiction as stated above, this civil revision cannot be sustained.

Further, as per Section 115, C.P.C., as amended in 1976, if a revision is filed against an interim order, unless irreparable injury or failure of

justice is shown the revision is not maintainable. In the present case, there is no irreparable injury or failure of justice. No such allegation even has

been made in the supporting affidavit to the application. Therefore, also this civil revision petition has no merit.

Further, as per Order 14, Rule 2, C.P.C., only when ""the case or any part thereof may be disposed of on an issue of law, the court may try that

issue first. But, what is contained in the affidavit in support of I.A. No. 1263 of 1992 is only that the court has no pecuniary jurisdiction and that

hence that question should be decided first. As per the written statement, the said contention is based on the fact that the suit is not properly

valued. If that is so, when a proper valuation is made and it is found that the court below has no jurisdiction, but some other court alone has

jurisdiction, then the plaintiff may have only to be returned for presentation to the said proper court. In such a situation, the said return of the plaint

cannot be considered as ""disposal"" of the case or part of it, spoken to in Order 14, Rule 2, C.P.C. Therefore also, on the very allegation in the

supporting affidavit, the abovesaid LA. is not maintainable.

Further, as per Order 14, Rule 2, C.P.C, only a question of law, if at all can be taken up as a preliminary issue. Issue No. 5 in the present case,

relating to jurisdiction, involves question of law and fact, since the question raised is that the suit has been not properly valued. In this connection,

no doubt the learned Counsel for the petitioner relied on the decision in Mitsubishi France Vs. Neyveli Lignite Corporation Ltd. and Another, ,

contending that the said decision has held that even where mixed questions of law and fact are relatable to an issue raising jurisdiction question, that

issue could be tried as preliminary issue. But, I find that the Supreme Court has observed in Major S.S. Khanna Vs. Brig. F.J. Dillon, , while

interpreting Order 14, Rule 2, C.P.C., as follows:

The jurisdiction to try issues of law apart from the issues of fact, may be exercised, only where in the opinion of the court the whole suit may be

disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as

preliminary issues. Normally, all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law

depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.

So, I am bound by the Supreme Court decision. I am, therefore, quite convinced that this civil revision petition has to be dismissed. 8. In the result,

the civil revision petition is not admitted, but dismissed.