Punjab-Haryana High Court
Rajesh Kumar vs Gholu Ram And Ors. on 30 June, 1998
Equivalent citations: (1999)121PLR653
ORDER G.C. Garg, J.
1. This order will dispose of Civil Revision Nos. 1733 and 1734 of 1992 as the point involved in the two petitions is precisely the same.
2. Plaintiff-petitioner filed a suit for permanent injunction against the defendant-respondents on the allegations that Gholu Ram defendant No. 1 entered into agreement with him to sell a share in the petrol pump vide agreements dated 6th October, 1987 and 8th September, 1988. The plaintiff paid him a sum of Rs. 53,000/- on each of the two occasions. The defendant was to get the agreements registered and time for that purpose was also extended. Further allegations is that the defendant failed to perform his part of the agreements and is now taking steps to alienate the suit property in favour of the other defendant.
3. The defendants filed written statement controverting the pleas taken in the plaint. On the pleadings of the parties as many as nine issues were framed. Issue No. 5 reading as "Whether the suit of the plaintiff is not maintainable in the present form? OPD" was frained in view of the preliminary objection taken by the defendants in the written statement.
4. After framing of the issues, the defendants moved an application that issue No. 5 be ordered to be treated as a preliminary issue. The trial Court after hearing learned counsel for the parties allowed the application by its order dated 18th April, 1992 and ordered that issue No. 5 be treated as a preliminary issue. It is this order of the trial court which is under challenge in these revision petitions.
5. Learned counsel for the petitioner submitted that issue No. 5 is not an issue which can be disposed of in the absence of evidence. According to the learned counsel, it involves a mixed question of law and fact and, therefore, the trial Court acted illegally in treating that issue as a preliminary issue.
6. After hearing learned counsel for the parties, I am of the opinion that no exception can be taken to the view taken by the trial Court. In my opinion, no evidence is needed for deciding the issue regarding maintainability of the suit. Learned counsel for the petitioner also could not bring to my notice as to what evidence is required to be produced by the plaintiff in support of this issue. Order 14 Rule 2 of the Code of Civil Procedure provides that where an issue both of law and fact arises in a suit and the Court is of the opinion that the case or any part thereof can 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 or a bar to the suit created by any law for the time being in force. In the present case, the issue "Whether the suit is maintainable in the present form? ..." is an issue of law and it goes to the root of the matter. The whole suit can be disposed of by this issue and it may not be necessary to all to take evidence on any other issue. The said issue can be decided by looking into the pleadings of the parties which are already on the record. In Jagjit Singh Mann v. Barinder Pal Singh, 1987 P.LJ. 247 it was held by this Court that issue relating to maintainability of the suit is purely a legal issue on the decision of which this whole suit can be disposed of and, therefore, it be treated as preliminary issue. This is what precisely has been done by the trial Court by granting the application for treating issue No. 5 as preliminary issue. I thus, see no illegality or material irregularity in the order of the trial Court. The revision petitions are consequently dismissed.
7. Since the proceedings before the trial Court were stayed by this Court, the parties through their counsel are directed to appear in the trial Court on 3rd August, 1998. The trial Court shall dispose of the suit at a very early date as the suit was filed in February, 1989 and is already more than nine year old.