Vaidahi Chetna Samiti vs The Additional District Judge and Others

Bela M. Trivedi, J.—The present writ petition has been filed by the petitioner-defendant under Article 226 & 227 of the Constitution of India, challenging the order dated 29.10.2012 passed by the Additional District Judge (No. 1) Kota, (hereinafter referred to as "the trial court") in Civil Suit No. 31/2006, whereby the trial court has dismissed the application of the petitioner to decide the issue of jurisdiction as a preliminary issue under Order XIV of CPC. It appears that the respondent No. 2-plaintiff has filed the suit against the present petitioner and the respondent No. 3 in respect of the suit lands. In the said suit, the petitioner had filed the written statement raising the issue of jurisdiction. The trial court appears to have framed the issues, from the pleadings of the parties, one of them being issue No. 6 as to whether the court had jurisdiction to entertain the suit. The petitioner, thereafter, appears to have filed an application for deciding the said issue as a preliminary issue, however the trial court has dismissed the said application.

It has been sought to be submitted by learned counsel Mr. Vagish Kumar Singh appearing on behalf of learned counsel Mr. Ashish Kumar Singh, for the petitioner that having regard to the dispute involved in the suit, the revenue court, and not the civil court would have the jurisdiction to decide the same and the impugned order passed by the trial court is illegal. According to him, the said issue should have been decided as a preliminary issue in view of the provisions contained in Order XIV of CPC.

In the instant case, it appears that the petitioner had submitted the application for deciding the issue of jurisdiction as a preliminary issue, after the evidence of PW-1, had already commenced. It is also pertinent to note that one year has already expired to the impugned order dated 29.10.2012 passed by the trial court, hence further evidence also must have been recorded by the trial court by this time. It is needless to say that request for deciding the issue of jurisdiction as a preliminary issue should be made by the party before the recording of evidence has commenced and not in the midst of recording of the evidence. Under the circumstances, the trial court had rightly dismissed the application of the petitioner. In that view of the matter, the petition deserves to be dismissed. However, it is clarified that any prima facie observation made by the trial court in the impugned order, shall not be considered by it at the time of final disposal of the suit. In view of the above, the petition being devoid of merits, is accordingly dismissed.