1. Heard learned Advocate Mr. A.B. Munshi, appearing on behalf of the petitioner. Though, the other side is served, neither they have remained present personally nor through any Advocate or have filed any appearance of any Advocate in the matter.
2. By way of the present Revision Application under Section 115 of the Code of Civil Procedure, 1908, the original defendants have challenged the order dated 14.06.2000 passed by learned Civil Judge (Junior Division), Borsad, below Ex. 45, in Regular Civil Suit No. 182 of 1997, by which, the defendants had requested the Trial Court to frame an issue as preliminary issue under the provisions of Order 14, Rule 2 of the Code of Civil Procedure with regard to the pecuniary jurisdiction of the Court under Section 24 of the Bombay Civil Courts Act, 1869.
3. Brief facts of the case are as under -
3.1 That present respondents instituted a Regular Civil Suit No. 182 of 1997 in the Court of Civil Judge (Junior Division), Borsad for declaration and injunction inter-alia to the effect that they have right to use the suit property in dispute as mentioned in the schedule to the plaint and further prayed that defendants be restrained from causing any obstruction or interruption in the use of the suit property in any manner.
3.2 During the pendency of the suit proceeding, the defendants preferred an application at Ex. 45 under the provisions of order 14 Rule 2 of the Code of Civil Procedure and requested the Court to frame an issue as preliminary issue and decide the same at the first instance. The request was to decide an issue as preliminary issue whether the Court has pecuniary jurisdiction to try this suit or not?
4. After haring the learned Advocate appearing for the respective parties and relying upon judgment in the case of Khimji Jiva and Ors. vs. Narendrakumar Maganlal Shah & Ors, reported at 1972 GLR 23, the learned Trial Judge rejected the application. Hence, this Revision Application.
5. The first contention raised by Mr. Munshi, learned Advocate for the petitioner, is with regard to relying upon a decision, which has been overruled by the Division Bench of this Court. He has submitted that the said judgment of Khimji Jiva (supra) came for consideration by the Division Bench of this Court in Second Appeal No.
381 of 1970. The Division Bench of this Court after considering several other judgments, overruled the said judgment and held that the decision of Khimji Jiva (supra) doesn't lay down the correct law.
6. Learned Advocate Mr. Munshi further submitted that the judgment of Khimji Jiva (supra) is overruled by Division Bench of this court in the case of Chhagan Karsan Vs. Bhagwanji Punja and Anr. reported in 1972 GLR 835. Therefore, the Trial Court has committed an error in relying an overruled judgment. The same is, therefore, required to be quashed and set aside.
7. Another ground raised by the advocate is with regard to the order passed by the Trial Court below application Ex. 45 that instead of framing the issue and thereafter deciding the same on merits, the Trial Court ought not to have decided the application on merits. In support of his submission, he has relied upon the case of Bharat Heavy Electricals Ltd. vs. General Contractor Company reported in 1996 (1) GLR 750. By relying upon the said judgment, he has submitted that the Court has held that when the application is filed under the provisions of Order 14, Rule 2 of the Code of Civil Procedure, the Trial Court is bound to consider that whether the legal issue raised in the matter requires framing an issue as preliminary issue or not and thereafter consider the same. As held in the case of Bharat Heavy Electricals Ltd.(supra) in paragraph 4 & 5, it was required to the Trial Court as under :-
“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 trail 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 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 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 as proposed by the defendant is not a pure question of law and cannot be tried as a preliminary issue under Order 14, Rule 2 of the Code, then in that case, it will be open for the Court to decide all issues simultaneously.”
8. In view of the above facts and circumstances, I am of the opinion that the impugned order dated 14.06.2000 passed below Ex. 45 is required to be quashed and set aside and the same is hereby quashed and set aside. The Trial Court is directed to decide the application Ex. 45, keeping in mind the ratio laid down in case of Bharat Heavy Electricals Ltd. vs. General Contractor Company (supra).
9. Rule is made absolute. Direct Service is permitted.
(A.J. Desai, J.) bhati*