GEETANJALI SAWNEY Vs. PREM BHANDARI AND OTHERS

JUDGEMENT

(1.) The challenge in the present revision petition is to the order passed by the learned trial Court on 7.6.2000, whereby Issue No. 8-A was ordered to be treated as a preliminary issue and the order dated 7.1.2002, whereby an application filed by the defendants for deciding all the issues, was dismissed.

(2.) The dispute between the parties is regarding estate of Desh Raj Nagrath, who died in October, 1977. According to the defendant-petitioner, Desh Raj Nagrath has left a Will in favour of one of his daughter Adarsh Sawhney, the mother of the present petitioner. A suit for partition has been filed by the plaintiff Prem Bhandari, another daughter of Desh Raj Nagrath, for possession by way of partition claiming l/4th share in the property, the remaining share being of her two sisters and one brother. The petitioner relied upon Will dated 29.1.1977 executed by Shri Desh Raj Nagrath in the written statement. On the basis of the pleadings of the parties, the learned trial Court framed issues on 6.10.1998, but after an amended written statement was filed, Issue No. 8-A was framed, which was to the effect 'Whether vide Will dated 29.1.1977, Adarsh Sawhney has become owner of the property in dispute OPD.' The learned trial Court vide order dated 7.6.2000 has ordered to treat the said issue as a preliminary issue. It is the case of the petitioner that as the dispute of a Will is the question of fact, the same could not be treated as a preliminary issue. In fact, the entire controversy in the suit revolves around the Will and, therefore, the issue regarding such question of fact could not be treated as a preliminary issue. It is argued that the application filed by the petitioners for deciding all the issues has been wrongly dismissed on the ground that defendant intends to delay the proceedings.

(3.) After going through the record, I am of the opinion that the order passed by the learned trial Court on 7.6.2000 and the subsequent order passed on 7.1.2002 suffer from patent illegality and irregularity. The preliminary issue can be framed only if the issue relates to the jurisdiction of the Court or bar to the suit created by any law for the time being in force, as contemplated Under Order 14 Rule 2(2) C.P.C. The issue of Will does not fall in either of these two categories. It is in fact a material issue of fact and, therefore, could not be treated as a preliminary issue by the learned trial Court. Therefore, in terms of the provisions of Order 14 Rule 2(2) C.P.C. Issue No. 8-A could not have been treated as a preliminary issue.