ESTRELA BATTERIES LTD Vs. MODI INDUSTRIES LTD

JUDGEMENT

(1.) THE suit giving rise to the present revision was filed by the opposite party against the applicant for damages for breach of contract. The suit was instituted at Ghaziabad. The applicant has its registered office at Bombay. The suit was contested by the applicant, inter alia, on the ground that the Court at Ghaziahad had no jurisdiction to entertain the suit and it could be instituted only at Bombay. Third of Sept. 1974, was the date fixed for framing of issues. Issue No. 1 was to the effect whether the Court had jurisdiction to try the suit as alleged by the defendant. After framing issues on that date the Court fixed 12th October, 1974 for deciding issue No. 1 as a preliminary issue. In the meantime on 9th September, 1974, the applicant made an application for framing additional issues. This application was allowed on 14th September, 1974, and on 5th October, 1974 certain additional issues were framed. One of these additional issues being issue No. 7 was whether the plaintiff had accepted the order of the defendant at Modinagar as alleged in paragraph 7 of the plaint and, if so, its effect. On 5th October, 1974, itself an order was passed that issue No. 1 shall be disposed of after the parties had filed their papers. The date of twelfth of October, 1974, which had initially been fixed for determination of issue No. 1 was cancelled. Before the aforesaid issue could, however, be taken up for decision an application was made on 23rd November, 1974, on behalf of the opposite party inviting the attention of the Court to the circumstances that on the pleadings of the parties the issue about jurisdiction could not be decided under Order 14, Rule 2 of the Code of Civil Procedure inasmuch as it did not raise a pure question of law but raised a mixed question of law and fact. This application was opposed by the applicant but was allowed on 5th Feb., 1975, whereby it was held that issue No. 1 cannot be decided as a preliminary issue and shall be disposed of after recording the evidence of the parties. Aggrieved by that order the defendant has preferred the present revision.

(2.) IT was urged by learned counsel for the applicant that the Court below committed a manifest error in taking the view that issue No. 1 could not be decided as a preliminary issue. Having heard learned counsel for the parties I am of opinion that the finding of the Court below is unassailable in a revision under Section 115 of the Civil P. C. On pleadings of the parties there can be no manner of doubt that issue No. 1 does not raise a pure question of law. On the other hand it raises a mixed question of law and fact. In this view of the matter no exception can be taken to the finding of the trial Court that the said issue could not be decided as a preliminary issue under Order 14, Rule 2 of the Civil P. C.

(3.) IN the instant case it would be seen that the issue in regard to jurisdiction, namely issue No. 1, was framed on 3rd September, 1974, which was the date fixed for issues. On that date admittedly no document was filed by the applicant. The entire emphasis of learned counsel for the applicant was that on the basis of the documentary evidence on record the issue about jurisdiction could be decided. When documents were not at all filed on 3rd September, 1974, by the applicant on the basis of which it is alleged that the issue about jurisdiction could be decided, it can hardly be urged that Order 15, rule 3 was attracted. The documents were filed by the parties subsequently. It appears that the documents filed by one party are not admitted by the other party. They have not been proved so far. Even at this stage, therefore, no finding can be given in regard to the issue of jurisdiction on the basis of the documents alone. Once these documents are not admitted they will have to be formally proved before any reliance can be placed on them. For this purpose oral evidence would invariably be necessary. The issue about jurisdiction could not, therefore, be decided as a preliminary issue under Order 15, R.3 either.