JUDGMENT Anjani Kumar, J.
1. By means of this writ petition under Article 227 of the Constitution of India the defendant-petitioner prays for the following reliefs:
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the order dated 25.5.2005. passed by Additional Civil Judge (Senior Division) Budaun in O.S. No. 64/98, Arvind Kumar Gupta v. Parmanand Agrawal, order dated 16.4.2005, passed in Civil Revision No. 38/2005 passed by District Judge, Budaun, Parmanand Agrawal v. Arvind Kumar Gupta, and order dated 1.3.2005, passed by Additional Civil Judge (Senior Division) Budaun.
It is further prayed that the trial court be directed to decide the preliminary issue of territorial jurisdiction first. Otherwise the applicant shall suffer irreparable loss and injury.
2. The facts, as narrated in the writ petition, are that plaintiff filed a suit against the petitioner-defendant for recovery of a sum of Rs. 66,626 in the court of Civil Judge (Senior Division) Budaun, which has been registered as Case No. 64 of 1998. As per the case set up by the plaintiff/contesting respondent it had been alleged inter alia amongst others that the plaintiff is a supplier of Dal Mill Machinery and its spare parts. The said Enterprise is being run in the name and style of M/s. Shakti Enterprises. On 19.12.1994, the defendant/applicant had placed an order with the plaintiff/contesting respondent regarding the supply of certain machinery part valued at Rs. 1,04,760. The delivery of the afore-placed order was made to the defendant/applicant on 8.2.1995 at Latur. Plaintiff/contesting respondent was also paid an amount of Rs. 40,000 the payment of which was also made in Latur. It was further alleged that the defendant/applicant on 10.2.1995 had assured to pay the balance amount within a week. However, when on 19.2.1995, the plaintiff/contesting respondent went to Latur to take payment, the defendant/applicant forcibly obtained a note from the plaintiff/contesting respondent as to have received the balance amount. Moreover the defendant/applicant with the help of certain local persons threatened the plaintiff/respondent with dire consequences and wowed him away. A legal notice dated 28.3.1995 was also sent, to which a false and concocted reply was made by the defendant/ applicant. On the aforesaid ground the plaintiff/contesting respondent sought a decree from the Civil Judge (Senior Division) Budaun for recovery of the balance amount payable, alongwith penal interest totalling Rs. 66,626.
3. The petitioner-defendant contested the aforesaid suit by filing a written statement. A preliminary objection was taken by the defendant-petitioner regarding the maintainability of the present proceeding at Budaun. It was alleged amongst others that the Budaun Civil Court had no territorial jurisdiction to adjudicate and entertain the aforesaid suit. In the written statement the defendant-petitioner alleged that he was carrying on business in the name and style of Maharashtra Dal Industries situated in Udgir, district Latur Maharashtra. The plaintiff-contesting respondent had entered into a contract with the defendant/ applicant regarding delivery of certain machinery at Udgir, Latur, Maharashtra. The said order was placed at Udgir district Latur Maharashtra itself. It was further alleged that a sum of Rs. 40,000 cash was paid to the plaintiff/contesting respondent on 8.2.1995 at Udgir itself. On the said ground it was alleged that no part of the cause of action had arisen within the territorial jurisdiction of the Budaun court which as such had no jurisdiction to take cognizance of the aforesaid suit.
4. On the pleadings of the parties the trial court framed as many as seven Issues. The petitioner-defendant submitted an application which is numbered as 62 Gha purporting to be an application under Order XVIII, Rule 4 of Code of Civil Procedure with the prayer that issue regarding territorial jurisdiction of the Court may be decided as preliminary issue. The said application has been rejected by the trial court after hearing learned Counsel for the parties by its order dated 1.3.2005, holding that issue of territorial jurisdiction is mixed question of fact and law as such the same cannot be decided as preliminary issue as it requires adducing of evidence by the parties.
5. Aggrieved by the order passed by the trial court dated 11.3.2005, the petitioner preferred a revision before the revisional court and the revisional court by the order impugned in the present writ petition dated 16.4.2005, dismissed the revision holding that revision under Section 115 of the Act against the order passed by the trial court refusing to decide issue as preliminary issue is not maintainable. The revisional court relied upon decisions of this Court in Ram Babu Singhal Enterprises (P.) Ltd. v. Digamber Parshad Kirti Parshad ; Sidhnath and Ors. v. District Judge, Mirzapur and Ors. 2002 (4) AWC 2695 : 2002 (48) ALR 759 ; Managing Director, Unitech Limited, New Delhi v. Motor Accident Claims Tribunal and Ors. 2000 (1) AWC 834 : 2000 (39) ALR 87 and Mithilesh Kumar and Ors. v. Gaon Sabha, Kishanpur and Ors. 1999 (2) AWC 1654 : 1999 ALR 610 and dismissed the revision summarily.
6. Aggrieved by the aforesaid order the petitioner filed this writ petition under Article 227 of the Constitution of India. Learned Counsel for the petitioner has submitted that the revisional court has erred in law in refusing to admit the revision particularly in view of law relied upon by the revisionist before the revisional court in the decision in Sultan Heater Finishers (Pvt.) Ltd. and Ors. v. Additional District Judge, Court No. 4 Unnao and Ors. 2005 (23) LCJ, and submitted that it is a fit case in which this Court should Issue direction to subordinate court to try issue regarding territorial jurisdiction as preliminary issue.
7. I have heard learned Counsel for the parties. To me it appears that the view taken by the revisional court and the trial court does not suffer from any error, much less an error which may warrant direction to be Issued by this Court under Article 227 of the Constitution of India. The power under Order XVIII, Rule 4 conferred on the Court from the very nature of its power is discretionary as held by this Court in the case of Ram Babu Singhal Enterprises (P.) Ltd. v. Digamber Parshad Kirti Parshad 1988 (2) AWC 1252 : AIR 1988 All 299 (supra) and a Division Bench of Calcutta High Court in Naresh Chandra Das v. Gopal Chandra Das AIR 1991 Cal 237, wherein the Division Bench of the Calcutta High Court has ruled that the provisions of Order XVIII, Rule 4 are discretionary. Learned single Judge of this Court has taken the same view in the case of Sidhnath and others (supra) and the case of Managing Director Unitech Limited (supra).
8. On the question of maintainability of the revision, provisions of Section 115 of Code of Civil Procedure, as amended by State of U. P., will come into play. The relevant portion is quoted below:
Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where:
(i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding ; or
(ii) the order, if allowed to stand, would occasion a failure of Justice or cause Irreparable Injury to the party against whom it was made.
9. Neither in the present writ petition, nor in the application before the trial court the petitioner has been able to demonstrate that the petitioner will suffer from Irreparable injury as is required for Invoking the jurisdiction under Section 115 of Code of Civil Procedure after U. P. Amendment.
10. In this view of the matter this writ petition has no force and is accordingly dismissed. The interim order, if any, stands vacated.