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Judgment
R.S. Chauhan, J.—The petitioner-defendant is aggrieved by the order dated 21.2.2014 passed by the Additional District Judge No. 11, Jaipur Metropolitan whereby the learned Judge has dismissed the application filed by the petitioner under Order 14, Rule 2(2) read with Section 151 CPC for deciding the issue No. 19 as preliminary issue to the suit.
Mr. N.K. Maloo, the learned senior counsel for the petitioner, has contended that in the plaint, the respondent-plaintiff had shown his age as thirty years, but in the affidavit, he had shown his age as forty years. Therefore, taking that the plot in dispute was allotted to him in 1981, he must have been a child of 8-9 years. Thus, he was a minor when allegedly he became a member of the cooperative society for allotment of the plot.
Secondly, according to the provisions of the Cooperative Societies Act, a minor cannot become a member of the cooperative society. Therefore, the issue No. 19 which relates to legality or illegality of allotment of plot to the plaintiff in case he were a minor, should have been decided as a preliminary issue. However, the learned Judge has dismissed the application without any sufficient reason.
Thirdly, the suit has been pending since 2003. The petitioner is not being permitted to raise any construction on the property in dispute. In case the issue No. 19 were decided as a preliminary issue, it would finally decide the suit itself, thereby paving the way for the petitioner to start the construction.
Heard the learned senior counsel for the petitioner and perused the impugned order.
Order 14, Rule 2 CPC reads as under:-
Court to pronounce judgment on all issues
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) 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.
A bare perusal of the said provision clearly reveals that a court is competent to try a issue as a preliminary issue if the issue relates to jurisdiction of the court, or to a bar created to filing of the suit under any law. However, the learned Judge has clearly noted, and in the opinion of this court rightly so, that the plea being raised by the petitioner, with regard to illegal transfer of plot to a person who is alleged to be a minor, does not fall within either of these two circumstances, as enumerated under Order 14, Rule 2(2) CPC.
Furthermore, the learned Judge is certainly justified in concluding that the issue No. 19 is a mixed question of fact and law. Therefore, he will be taking-up issue No. 19 and adjudicating thereupon alongwith all other issues. The reasoning given by the learned Judge cannot be faulted.
Merely because the petitioner is having certain difficulties in raising construction on the property in dispute cannot be a reason for filing frivolous applications and trying to circumvent the legal procedure.
In case the petitioner is of the opinion that an inordinate delay is being caused in completing the trial, the petitioner has alternative legal remedies available to him. Therefore, merely because the trial is continuing cannot be a reason for allowing an application under Order 14, Rule 2(2) CPC.
For the reasons stated above, this court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit is, hereby, dismissed. The stay application also stands dismissed.