B MOHAMMED ALI Vs. D DAWOOD BASHA

JUDGEMENT

(1.) This petition under Section 115 of the Code of Civil Procedure is directed against the order of the Principal Munsiff, Bellary, rejecting the petitioner's application LA. No. IV, moved with the prayer to the effect that issue 6 be tried as preliminary issue in O.S. No, 487 of 1991. In the written statement to the plaint, the defendant-applicant had taken the plea to the effect that the valuation furnished by the plaintiff is not accordance with the rate and it is vague. The overall market value of the schedule properties would be more than Rs. 5,00,000/-. In that view of the matter, the Munsiff Court had no jurisdiction to entertain the suit itself. In I.A. No. IV, the prayer was that issue be tried as preliminary issue. The Trial Court rejected that application taking the view that it involves the mixed question of fact and law and it should be determined after leading of the evidence by the parties and not on the basis of their contentions taken in the pleadings. On this ground the Trial Court rejected his application.

(2.) Having felt aggrieved from the order passed by the Trial Court that Issue 6 will be decided along with other issues. The defendant-applicant has come up in revision under Section 115 of the C.P.C. The first and foremost important conditions in the matter of revision under Section 115 is that the applicants should satisfy that the order amounts to a case which has been decided. The expression 'case decided' has been, as per the explanation to Section 115 of the Code, defined to mean any order or an order deciding in issue. The learned Counsel for revisionist relying on the explanation urged that it is an order and which can be termed to be a case decided under Section 115 of the Code. The order in explanation has not used in the general or ordinary sense of the term. The expression 'order' has been defined in the Code vide sub-section (14) of Section 2 of the C.P.C. Under sub-section (14) of Section 2 of the Code the 'order' means the formal expression of any decision of a Civil Court which is not a decree. This definition of expression 'order' has to be taken into view when it is required to be considered whether a particular order amounts to case decided. Because it is well-settled principle of rule of interpretation that words or the expressions used in the Act, are defined by the Act as per definition clause thereof then for the interpretation of the words and expression used and defined in the Act we must look into the definitions given therein. We are not concerned with any presumed legislative intents. The exception to this general rule are cases where context or otherwise requires. Therefore the expression 'order' as used in the explanation to Section 115 of Code and must mean the formal expression of any decision of a Civil Court which is not a decree. Thus considered an order amounting a decision of some right or dispute as to right even if interlocutory in nature may amount to be a case decided. The decision means and postulates that there must be a dispute with regard to certain rights may be, a dispute inter se the parties in the suit or may be dispute which relates to some right relating to procedural matters. Unless there is some decision of certain disputed rights either under substantive law or procedural law the order cannot be termed to be an order amounting to case decided in the sense as it is used in the explanation.

(3.) In the present case the only prayer has been made that issue 6 may be decided first. The Trial Court has not given any decision one way or the other. The Trial Court opined as issue is on of fact and law and the evidence has to be recorded on matters of fact for decision thereof. It cannot be decided as a preliminary issue but it will be decided along with other issues. In my view, in this order no right of the parties has been determined one way or the other. Apart from that what issue can be decided as preliminary issue it has been clearly provided in Order 14, Rule 2 of the C.P.C. Order 14, Rule 2 reads as follows: