JAI KUMAR Vs. YADAV NANDAN MALHOTRA

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure (here -after referred to as the Code) as directed against the order dated 14.1.2002 passed by the learned sub Judge (3). Mandi whereby a issue (issue No.11). being a preliminary issue, has been ordered to be tried first and the onus of proof of the issue though on defendant/respondent No.l (here -after referred to as the defendant No.l). the petitioner/plaintiff (here -after referred to as the plaintiff) has been directed to lead evidence in support of the issue.

(2.) The brief and admitted facts are that the plaintiff has instituted a suit for declaration and injunction against the respondents/defendants which is pending disposal in the Court of the learned sub Judge (3), Mandi. The suit is being contested by the respondents/defendants and defendant No.l in his written statement has also raised an objection that the said Court has no jurisdiction to entertain and try the suit. On the basis of the said suit, inter alia, an issue regarding jurisdiction of the trial Court to entertain and try the suit has also been framed which has been numbered as Issue No. 11 and the onus to prove the said issue has been placed on defendant No.l. The learned trial Judge vide the impugned order, directed that the said issue should be decided as preliminary issue as the findings thereon would go to the root of the case and directed the plaintiff to lead evidence in support of the issue.

(3.) Being aggrieved by the said order, the plaintiff has preferred the present revision petition on the grounds that the said issue being the mixed question of law and fact could not be treated as a preliminary issue and in any case, the plaintiff could not have been asked to lead evidence to prove the said issue the. onus of proof whereof was on defendat No. 1.