BRAJVASILAL PATEL Vs. JAGDISH

JUDGEMENT

(1.) Though, this petition is filed challenging several orders, learned counsel for the petitioners fairly admits that on 31/8/18 he restricted his challenge to the order dtd. 21/12/2017 whereby an apllication under Order 14 Rule 2 CPC was dismissed. He did not press petition against other orders. Threrefore, with the consent of the parties this case is taken up for hearing only to consider the validity and correctness of the order dtd. 21/12/2017 passed by learned 4th Aditional District Judge , Rewa dciding an application under Order 14 Rule 2 of the CPC.

(2.) It is not in dispute that the petitioner who are defendants 1 to 3 before the trial Court had filed an application under Order 14 Rule 5 of the CPC which was dismissed vide order dtd. 6/5/2016. Shri Sanjeev Singh submits that this order dtd. 6/5/2016 was not put to challenge before any superior Court. The application under Order 14 Rule 2 of the CPC says that since a preliminary objection was taken in regard to the provisions contained in Order 2 Rule 2 of the CPC, therefore, application under Order 14 Rule 2 CPC should have been allowed and preliminary issue in regard to maintainability of the suit in view of the provisions contained in Order 2 Rule 2 CPC, should have been decided first.

(3.) Though orally Shri Sajeev Singh submits that plea of res judicata was taken but he fairly submits that he is not in possession of any document to substantiate that plea of res of judicata was taken. That was the bone of the contention. In fact, the application contained in Annexure P-4 also does not make any mention of plea of res judicata to be tried as a preliminary issue. Law in this behalf is crystal clear. The Madras High Court in the case of S.G. Badrinath v. Jagannathan and Another, AIR 2004 Madras 161 wherein it is held that consideration of an issue and its disposal as a preliminary issue has, after the 1976 amendment, been made permissible only in limited case. Those issues are of law relate to (i) the jurisdiction of the Court; or (ii) a bar of the suit created by any law for the time being in force. As far as jurisdiction of the Court is concerned, that is not covered under Order 2 Rule 2 which was a plea taken in the application under Order 14 Rule 2 of the CPC. As far as suit being barred by any law is concerned, for that application under Order 7 Rule 11 of the CPC is maintainable and not application under Order 14 Rule 2 of the CPC and when examined from this angle then the application was clearly misconceived with an idea to delay the proceeding in the suit. Accordingly, when the impugned order is tested, it cannot be found faulted with. Hence, the petition fails and is dismissed. The interim order granted earlier by a Coordinate Bench is hereby vacated.