LAKHESWAR DUTTA Vs. RAIFUDDIN AHMED ALIAS RICKBABA

JUDGEMENT

(1.) THE revision petitioner herein is a defendant in TS No. 266/2003 pending in the Court of learned Civil Judge (Senior Division) No. 2, Guwahati. This defendant filed his written statement, wherein he contended, inter alia, that he had already sold the suit property and he was no longer the owner and possessor of the suit property and, hence, he was neither a necessary party nor could have the said suit been filed against him. Reiterating this plea, this defendant also made an application under Order 15, Rules 1 and 2, CPC for framing of a preliminary issue on the plea so taken by the defendant.

(2.) BY the impugned order, dated 26. 2. 2004, the learned trial Court has rejected the above prayer on the ground that decision on the issue as to whether the suit was maintainable in the present facts and circumstances is an issue, which could not have been tried as a preliminary issue inasmuch as evidence is required to be adduced for the purpose of sustaining the allegations made in the petition. Aggrieved by this order, the defendant is before us in this revision. I have perused the materials on record including the impugned order. I have heard Mr. M. Talukdar, learned counsel for the petitioner.

(3.) UPON hearing the learned counsel for the petitioner and on perusal of the materials on record, it is abundantly clear that the plea taken by the defendant-petitioner that he is neither a necessary party to the suit nor that the suit is maintainable against him are, both mixed questions of fact and law and on, none of these two grounds/questions, any preliminary issue in terms of Order 15, Rule 2 (2) CPC, could have been framed and decided inasmuch as the Court is, normally, required to pronounce, according to Order 15, CPC, judgment on all issues, but if any issue, which is an issue of law only and if the issue, in question, relates to jurisdiction of the Court and/or to any bar created by law for the trial of the suit, the trial Court can dispose of the suit or any part thereof by trying the issue, in question, as a preliminary issue. A question of fact or mixed questions of fact and law cannot be tried and decided as a preliminary issue. Since the application made by the defendant-petitioner required determination of questions of fact, the plea for trying the issue as a preliminary issue could not have been entertained by the learned Court below.