The petitioner/first respondent/plaintiff has filed this civil revision petition as against the order dated 10.09.2009 in I.A.No.239 of 2009 in O.S.No.121 of 2006 passed by the Learned Additional District Judge, Salem (Fast Track Court No.1) in allowing the application filed by the Respondents Nos.1 to 3/petitioners/Defendant Nos.3 to 5 under Section 151 of Civil Procedure Code to pass an order that Issue No.4 may be heard immediately as a preliminary one on the basis of so called impugned will dated 08.02.1987.
2. The Learned Additional District Judge, Salem (Fast Track Court No.1) while passing orders in I.A.No.239 of 2009 dated 10.09.2009 has inter alia observed that, 'this court comes to the conclusion that the suit is barred by limitation for the reason that no suit has been filed against the executor envisaged by the law and and besides this the plaintiff cannot also seek partition on the basis of a registration copy of the will which itself exposes suspicious circumstances, and beyond that the plaintiff has no right to continue the suit on his own, showing that he has alienated the suit property to the third person joining hands with Defendant Nos.1 and 2 who has already executed a valid registered document of sale in favour of the respondents/petitioners long prior to the suit and as such the suit is not maintainable, and resultantly, allowed the application without costs and observed that the preliminary issue in regard to the maintainability of the suit may be heard first.'
3. The learned counsel for the revision petitioner/first respondent/plaintiff contends that the order passed by the trial Court in I.A.No.239 o9f 2009 is vitiated by material irregularities and an illegal ones and further that the trial Court has committed an error in predetermining the issue and added further question of limitation has not been raised in the pleading and no issue has been framed and indeed the suit has been filed within time and even otherwise, the issue of limitation can be decided only after full trial and in short the observation of the trial Court in its order in I.A.No.239 of 2009 to the effect that the suit is barred by the limitation etc., is an otiose one and unfortunately, these aspects have not been adverted to, and appreciated by the trial Court in a proper legal perspective which has resulted in miscarriage of justice and therefore prays for allowing the civil revision petition to prevent and aberration of justice.
4. It is useful to refer to the affidavit of the first respondent/first petitioner/third defendant in I.A.No.239 of 2009 before the trial Court which runs to the effect among other things that the suit ought not to have been entertained at all and firstly, when an executor has been appointed in the will itself and if he does not carryout his mission, the parties concerned should have moved the Court and that too within the time against K. Kandasamy to direct him to divide the properties between the sharers and this has been done and the time has also ran out and even the suit filed here is beyond time and for the said reasons the suit ought not to have been entertained at all and should have been disposed of at the threshold.
5. It is further submitted that this Court has already framed the issue no.4 as to whether the suit is maintainable and the suit issued may be heard and decided as a preliminary one to avoid unnecessary lengthy trial of the suit which will take long time.
6. In the counter filed by the revision petitioner/first plaintiff before the trial Court it is among other things mentioned that, "as per the will the revision petitioner/plaintiff is entitled to half share in the suit properties and admittedly, the suit properties have not been divided so far and so, the plaintiff is entitled to maintain the suit for partition of his half share and when K.Kandasamy has not appointed as executor nor any time limit has been fixed for him to do anything enjoined upon him as per the will, and further that in the written statement the respondents/petitioners have not taken a plea in the written statement that the suit ought not to have been numbered or that K. Kandasamy is an executor and because he has not performed his duties as an executor the suit is not maintainable and the same is barred by limitation, and moreover, the Respondents No.1 to 3/petitioners/Defendants 3 to 5 have no right to the suit property and hence they are not entitled to file the application at all.
7. It is to be pointed out that Order 14, Rule 2, of Civil Procedure Code enjoins as follows;
"Where issues both of law and 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".
8. From the wordings of the aforesaid Rule it i crystal clear that an issue to be tried as a preliminary one means not only be an issue of Law but it must be capable of disposing of, the suit or any part of it.
A Court of Law can frame a preliminary issue as to (1) Jurisdiction or (2) Bar of suit as per the decision S v. Bandalam AIR 1982 AP 291. The decision of issue as a preliminary one is within the trial Court discretion and ordinarily the exercise of this discretion cannot be interfered within revision, as per decision MD Nanjudasamy v. Basic Education Society AIR 1990 Kant 245.
9. On a careful consideration of respective contentions and after going through the order passed by the trial Court in I.A.No.239 of 2009 dated 10.09.2009 this Court is of the considered view that the conclusion arrived at to the effect that, 'the suit is barred by limitation etc.' is a premature one because of the fact that even before coming to the decision as to whether the said I.A.No.239 of 2009 has to be allowed or not, such conclusion being arrived at by the trial Court is not a valid one and even though the said observation of the trial Court, "... that the suit is barred by limitation etc." can at best be considered to be a tentative one as projected by the learned counsel for the Respondent Nos.1 to 3. This Court without going into the merits of the matter in detail on the basis of Equity, Fair Play, Good Conscience and as a matter of prudence, directs the trial Court to take up the issue no.4, whether the suit is maintainable? as a preliminary one and if the said preliminary issue requires oral or documentary evidence to be let in for the purpose of adjudication, then the trial Court shall permit the party to do so and in this regard due opportunities shall be provided by the trial Court and later, to dispose of the same, uninfluenced by the observations made by it earlier in I.A.No.239 of 2009 within a period of 3 weeks from the date of receipt of copy of this order and accordingly, the civil revision petition is disposed of without costs. Consequently, M.P.No.1 of 2009 is closed.
prm To The Additional District (Fast Track Court No.1) Salem