ASSAM PETRO CHEMICALS LTD. Vs. KUMKUM CHALIHA

JUDGEMENT

(1.) THIS revisional application under Section 115 of the Code of Civil procedure has been preferred by the defendants-petitioners against the order dated 20.7.1992 passed by the learned Assistant District Judge, 2nd Court, Alipore in Money Suit No. 46 of 1984. By the impugned order, the learned Trial Judge directed the above money suit to be fixed in the peremptory board for final disposal after disposal of the application for amendment of plaint filed by the plaintiffs fixing 20.8.92 for the purpose. Before considering the submissions made by Mr. Dasgupta against the impugned order, it would be necessary to refer to the admitted facts on record.

(2.) THE above money suit was filed by the plaintiffs on 18.9.94 against the present petitioners for damages on ground of breach of contract. The defendants on their appearance took a preliminary objection regarding the jurisdiction of the Trial Court to entertain the above suit. The Trial Court without framing issue decided the same on 2.6.86 under Order No. 22. A Division Bench of this High Court presided over by C. Mookherjee and A.C. Sengupta, CJJ., in exercise of revisional jurisdiction virtually set the aside the order with the following directions :-

(3.) IT is needless to say that the matter in issue has a chequered career. The suit was filed in 1984 and the defendants-petitioners came up before this High Court twice against the orders passed by the Trial Court on the point of jurisdiction. The Order of the High Court dated 9.1.87 has clearly left the question of jurisdiction to be decided as a preliminary issue to the discretion of the Trial Court. The High Court in its Ordered dated 9.1.87 has observed that it is for the Trial Court to decide whether the same should be tried as a preliminary one or after recording the evidence in full the issue regarding jurisdiction ought to be tried as a preliminary one. In pursuance of that order, the Trial Court decided the issue No. 2 as a preliminary one and the finding of the Trial Court on that issue, as already noted, was set aside by the High Court in the revisional jurisdiction by the Order dated 5.4.89. In the said Order also, the High Court made it clear that the Court below will be at liberty to decide as to whether the issue with regard to jurisdiction could be heard as a preliminary issue or the suit would be heard as well and the High Court did not pass any order in that respect. The Trial Court in the impugned order has given the reasons for not considering the issue No. 2 as a preliminary one. He has also given the reasons that the said issue should be decided along with other issues for the disposal of the entire suit. The Trial Court was quite specific in its observation that the suit was pending since 1984. Further period of more than four years have passed since the passing of the impugned order and the suit is pending in the Trial Court for a period of more than 12 (twelve) years only on the question of determining the issue No. 2 as a preliminary issue relating to jurisdiction of the Trial Court. In that view of the matter, it cannot be said that the Trial Court has acted illegally or with material irregularity by not hearing the issue No. 2 as a preliminary issue and directing the same to be decided along with other issues while disposing of the entire suit on merits. In that way, the Trial Court is quite within its jurisdiction and discretion given by this High Court in the Orders dated 9.1.87 and 5.4.89. Mr. Dasgupta has argued that the Trial Court should not have ignored the earlier orders as referred to above fixing the matter of hearing issues No. 2 as a preliminary issue as those orders could not be reviewed by the Trial Court. I am unable to accept of Mr. Dasgupta's contention. In view of the fact that the aforesaid orders passed by the Trial Court fixing a date of hearing of issue No. 2 the Trial Court did not adjudicate anything and those orders were relating to the business of the Court to be transacted on those days. It is quite within the discretion of the Trial Court to say, taking into consideration the age of the suit that the entire suit should be heard on all the issues including the preliminary issue of jurisdiction. In that respect Mr. Dasgupta has referred a decision of the Supreme Court reported in AIR 1981 SC Page 2085 (Ramji Dayawala and Sons (P) Ltd. v. Invest Import). In the above reported case, the Supreme Court has observed that discretion of the Court is to be exercised according to well-established judicial principles, according to reason and fair play and not according to whim and caprice. It cannot be said that by passing the impugned order the Trial Court has acted arbitrarily, whimsically or capriciously. Regarding the second contention of Mr. Dasgupta, I am unable to agree with him that the Trial Court by fixing a date for hearing the amendment application filed by the plaintiff without disposing of the issue No. 2 has acted illegally or with material irregularity. Mr. Dasgupta, in support of his contention has relied upon a decision of the High Court reported in AIR 1978 Cal. Page 133 (Zohra Khatoon v. Janab Mohammad Jane Alam and others). But after going through the aforesaid reported decision, it is difficult to say that the said decision helps Mr. Dasgupta in any way. In the aforesaid case, the Trial Court decided on a preliminary issue that it has no territorial jurisdiction to try the suit concerned. In that view of the matter, this Court observed as follows :-