MAHABIR PROSAD LILHA Vs. BISWANATH KOTHARI

JUDGEMENT

(1.) The plaintiff-opposite parties Nos. 1 to 4 instituted Title Suit No. 161 of 1965 for ejectment. In December, 1977, the plaintiffs applied for local inspection of the land in question. At that stage the petitioner-defendant No. 3 put in an application to decide the preliminary "point regarding the jurisdiction of the court to try the suit. The prayer was turned down. Hence this revisional application.

(2.) It has been contended on behalf of the petitioner that the notice of ejectment was served directing the defendant to vacate the premises in question on the expiry of the 30th June, 1965. The averment was that the tenancy was according to English calendar But, in fact, the tenancy in favour of the defendant's predecessor-in-interest commenced from the 12th November, 1963. Hence the suit for ejectment was not maintainable he-cause on the face of the plaint the notice was invalid in law. In order to support that contention reference has been made to the Full Bench case of Gurudas Biswas v. Charu Panna Seat in . It has been stated in that case that the question of notice is in essence a point of jurisdiction and the court has HO jurisdiction to entertain the suit in the absence of a notice to quit. It is a part of the plaintiffs requirement to entitle them to maintain the suit. Reference has also been made to the case of Brijmohanlal Rathi v. Amin Chand Pyarelal in (1976) 1 Cal LJ 586 to show that under the provisions of Order XIV, Rule 2 of the Civil Procedure Code a pure question of law can be tried as a preliminary issue. Apart from the provisions of the Order, the court has an inherent power to be exercised in exceptional cases to try one or some of the issues first though in trying such issue or issues some questions of fact may have to be considered. If the decision of the issue disposes of the entire suit, the same should be tried as a preliminary one. It has been contended that this decision was arrived at after considering the Supreme Court decision of Khanna v. Dillon in . The question of notice goes to the root of the matter. The learned Munsif committed a jurisdictional error in rejecting the petitioner's petition to try such issue as a preliminary one.

(3.) The learned Advocate appearing on behalf of the plaintiff-opposite parties elaborately dealt with the matter. He has stated that in the case of Khanna v. Dillon (supra) at p. 503 it has been stated that normally all the issues in a suit should be fried by the court. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where the court is of opinion that the whole suit may be disposed of on the issue of law alone. But the Code confers no jurisdiction upon the court to try a suit of mixed issues of law and fact as a preliminary issue. The case of Kanailal v. Pannasashi in will show that if a decision on a question of law depends upon a question of fact, the question of fact must be decided first in order to avoid the necessity of an order of remand.