BHILANGANA HYDRO POWER LTD Vs. A R TRADELINKS

JUDGEMENT

(1.) Challenge by means of these petitions under Section 115 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order of the trial court dated 23.7.2014 which has refused to consider the issue of territorial jurisdiction as a preliminary issue and has fixed the suit for plaintiff's/respondent's evidence.

(2.) No doubt, counsel for the petitioner/defendant correctly refers to the order of the trial court dated 21.11.2012 which treated the issue of territorial jurisdiction framed on 05.9.2012 as a preliminary issue and accordingly it is urged that once the issue is decided to be treated as a preliminary issue the issue of territorial jurisdiction should have been decided as a preliminary issue and the trial court vide impugned order dated 23.7.2014 could not have fixed the case for plaintiff's evidence, however, independent of the order passed by the trial court on 21.11.2012, in law, issue no.1 framed on 05.9.2012 pertaining to the territorial jurisdiction cannot be treated as a preliminary issue because an issue can only be treated as a preliminary issue if it is a legal issue i.e an issue can be treated as a preliminary issue if for deciding the same no evidence is required. Once however the issue involves trial required to be conducted on disputed questions of fact, such an issue cannot be decided as a preliminary issue.

(3.) A reference to para 4 of the plaint shows that as per the respondent/plaintiff, a contract was concluded at Delhi. Though no copy of the written statement has been filed before this Court, counsel for the petitioner/defendant states that this is disputed and it is contended that the courts at Delhi have no territorial jurisdiction. Once the issue of territorial jurisdiction is a disputed question of fact, the same cannot be tried as a preliminary issue, and which can and will be heard and disposed of only at the time of final arguments and after evidence is led by the parties.