Gujarat High Court
Bharat Heavy Electricals Ltd. vs General Contractor Co. on 1 April, 1995
Equivalent citations: AIR1996GUJ46, (1996)1GLR750
ORDER J.N. Bhatt, J.
1. This revision application is directed against the judgment and order passed by the Court of the learned 3rd Joint Civil Judge (S.D.), Bhuj in Special Civil Suit No. 1 of 1988 below application Exh. 23 refusing to raise an issue as to the jurisdiction as preliminary issue, by invoking the aids of provisions of Section 115 of the Code of Civil Procedure, 1908 ('the Code' for short).
2. The material facts giving rise to the present petition may be stated. For the work of the petitioner for which tenders were invited by it, the respondent submitted the tender wherein one of the terms and conditions was as under:
"5.2 Effect and jurisdiction of the contract:
The contract shall be considered as having come into force on the date of letter of intent. This contract shall in all respects be governed by and construed according to the laws in force in the Republic of India during the period of contract. The civil courts having ordinary original civil jurisdiction, New Delhi shall have exclusive jurisdiction in regard to all claims in respect of this contract"-
There is also an arbitration clause in the tender condition accepted by the respondent on the basis of which it had filled in the tender. It also provides that the dispute that may arise between the parties shall be subject to arbitration and the venue of arbitration shall be New Delhi and that condition is Condition No. 43D. The respondent had along with submission of tender, paid Rs. 20,000/- to the petitioner as earnest money, for the contract work for which tenders were invited. There was a dispute between the parties. Therefore, Special Civil Suit No. 1 of 1988 was filed in the Court of Civil Judge (S.D.) at Bhuj. The petitioner who is the original defendant had submitted application Ex. 23 in the trial Court on 7-8-1990 requesting the Court to raise a preliminary issue of law for deferring raising of other issues. The following issue of jurisdiction was sought;--
"Whether this Court has jurisdiction to entertain and decide the case?
The defendant prayed that the said issue of jurisdiction should be tried and decided first as it pertains to law only.
3. After hearing the learned Advocates of the parties and considering the facts and circumstances, the trial Court rejected the application Ex. 23 oh 26-11 -1992. Therefore, this revision against that order by the original defendants.
4. It is very clear from the impugned order that instead of deciding the aforesaid request for raising an issue relating to jurisdiction, the learned trial Judge disposed of the said issue as if it was raised. The trial Court was required and requested to frame an issue relating to jurisdiction only. It was not proper and not open to the trial Court to decide the merits of the issue as if it was raised. Thus, the trial Court has committed a serious error of law requiring interference of this Court.
5. Ordinarily, in such a situation, the trial Court should be directed to decide all issues simultaneously so as to obviate delay in deciding the case. However, in view of the peculiar facts and circumstances emerging from the record of the present case, it would be expedient to direct the trial Court to consider whether the proposed issue relating to jurisdiction can be taken up as a preliminary issue. If the trial Court finds that such an issue can be taken up as a preliminary issue in light of settled proposition of law, then in that it will have to decide the merits of that issue by raising it as a preliminary issue. On the other hand, if the trial Court finds that such an issue is not a pure issue of law or in other words, it is a mixed question of law and fact, then, the court would hold that such an issue cannot be raised as a preliminary issue being not a pure question of law. This was required to be decided. Unfortunately, the trial Court decided the merits of the issue of jurisdiction. The trial Court may also consider that if the issue of jurisdiction as proposed by the defendant is not a pure question of law and cannot be tried as a preliminary issue under Order14, Rule 2 of the Code, then in that case, it will be open for the Court to decide all issues simultaneously.
6. In light of the facts and circumstances narrated hereinbefore, this revision is required to be allowed partly. Accordingly, the petition is partly allowed. The matter is remanded back to the trial Court with a direction to decide the application Ex.23 in light of the aforesaid direction, within a period of three months from the date of receipt of writ of this Court. The shall be no order as to costs.