Court No. - 5
Case :- WRIT - C No. - 9946 of 2018 Petitioner :- Jai Prakash And 5 Others Respondent :- Additional Commissioner(Judicial) And 10 Others Counsel for Petitioner :- Surendra Nath Yadav,Alok Kumar Yadav Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan
Hon'ble Pankaj Naqvi,J.
Heard Sri Alok Kumar Yadav, learned counsel for the petitioners, Sri Tariq Maqbool Khan, learned counsel for the Gaon Sabha and Sri Rajesh Kumar, the learned standing counsel.
The writ petition is preferred against the orders dated 23.9.2015 & 17.11.2017, refusing to decide an issue under Section 49 of U.P. Consolidation of Holdings Act as a preliminary issue.
Learned counsel for the petitioners on the strength of Order XIV Rule 2 of the Code and the decisions in A Kanthamni vs. Nasreen Ahmad, 2017 (4) SCC 654, Narendra Singh and others vs. Jai Bhagwan and others, 2005 (9) SCC 157 and ITC Limited vs. DRAT & Others, 1998 (2) SCC 7, submits that the view taken by the authorities below runs counter to the said decisions.
Order XIV Rule 2 of the Code after the amendment vide Act No.104 of 1976 manifests that it is no longer obligatory, rather discretionary to decide an issue relating to jurisdiction of the court or a bar to the suit created by any law as a preliminary issue. Reference may be made to a decision of the Full Bench in Sunni Central Waqf Board and others vs. Vishal Singh, AIR 1991 ALD 89.
A plea of Section 49 of U.P. C.H Act is also a mixed question of fact and law as it involves scrutiny of evidence which can be examined only at an appropriate stage. This Court in Y.S Mishra vs. Mahendra Kumar and others, 1988 AWC 380 All, has already taken a view that if a court defers the trial of a preliminary issue along with other issues, it cannot be said to have committed any jurisdictional error and so is the view in Mithilesh Kumari and others vs. Gaon Sabha and others, AIR 1999 All 304.
The impugned orders when tested at the anvil of above parameters, the Court does not find any error apparent on the face of record.
The decision in Kanthamani (supra) is on the proposition that a plea of maintainability of suit is to be raised at the first instance, not at an appellate stage unless the case is of exceptional in nature. The said decision has no application in the present case as plea of Section 49 by the petitioner has been raised, issues framed but its consideration has been deferred to a subsequent stage with other issues in view of the explicit language in which sub-rule (2) Order XIV is couched. The decision in Narendra Singh (supra) nowhere holds that an issue under Section 49 is to be decided as a preliminary issue. ITC Limited (supra) is on the proposition that a plaint can be rejected under Order VII Rule 11 even after framing of issues which is not the issue involved herein.
No other plea is urged.
The writ petition is devoid of merits and is dismissed.
Order Date :- 23.3.2018 Chandra