BALCHAND MALAIYA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal has been filed under Clause 10 of the Letters Patent against the judgment dated November 30, 1988, of the learned single judge in First Appeal No. 218 of 1984 and the consequent decree by which the judgment and decree dated August 6, 1984, passed by the learned District Judge, Sagar, in Civil Suit No. 5-B of 1984 have been affirmed.

(2.) THE plaintiffs are the trustees of Singhai, Karelal, Kundanlal Trust, of which 25 per cent. income is utilised for charitable purposes and the remaining 75 per cent. accrues to its beneficiaries, Smt. Gulab Bai and Tarabai. A notice under Section 80 of the Code of Civil Procedure was sent to the defendants before filing the present suit.

(3.) AGGRIEVED by the said judgment of the trial court, the plaintiffs preferred an appeal to this court which has been dismissed by the learned single judge of this court by his impugned order and decree. Before the learned single judge, a preliminary objection was raised that Section 293 of the Income-tax Act, 1961, barred the jurisdiction of the civil court and, therefore, the suit itself was not competent. The learned single judge, accordingly, dismissed the suit on the ground that in view of Section 293 of the Act, the civil court had no jurisdiction to entertain such a suit. Hence, this Letters Patent Appeal has been filed. Learned counsel for the appellants has vehemently argued that for the purposes of jurisdiction, only the averments in the plaint have to be looked into and in any case the issue of jurisdiction can be tried only as one of the issues. According to learned counsel, the appeal ought not to have, therefore, been dismissed on such a preliminary issue.