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Judgment
Narendra Mohan Kasliwal, J.—Heard learned Counsel for the parties. This revision is directed against the order of learned Munsif and Judicial Magistrate, Kishangarhbas dated 30th May, 1986.
On the basis of the pleadings of the parties the trial court framed 7 issues out of which issues No. 2 and 4 read as under:...
The petitioner had submitted before the trial court that the above mentioned 2 issues should be decided as preliminary issues. Learned trial court by the impugned order dismissed the above prayer of the petitioner.
It has been contended by learned Counsel for the petitioner that u/s 46 of the Administration of Evacuee Property Act, 1950, there is a bar to file any suit with regard to any evacuee property. It is contended that the property in question has already been declared as evacuee property and in that regard the petitioner has filed a number of documents before the trial court. It has thus been submitted that the case itself can be disposed of on the basis of issue No. 2 as well as issue No. 4 which relates to res-judicata. On the other hand Mr. Jain contended that the trial court was right in giving a direction that the above 2 issues should also be decided along with the other issues relating to the facts in dispute.
Sub-rule (2) of Rule 2 of Order 14 CPC provides 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,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
In view of the above provision it is clear that the above 2 issues are issues of law and the case itself can be disposed of by determining the above 2 issues. Learned trial court thus, committed a material irregularity in the exercise of its jurisdiction in not trying the aforesaid 2 issues, as preliminary issues. This revision is accordingly allowed, the order of the trial court is set aside and the trial court is now directed to decide issues Nos. 2 and 4 mentioned above as preliminary issues. Parties shall bear their own costs.