PANCHAYAT SHRI DIGAMBER JAIN Vs. CHIRANJI LAL PATNI

JUDGEMENT

(1.) THIS revision has been filed by the defendants against the order dated 25th July, 1987 passed by the Addl. District Judge No. 1. Jaipur City in civil suit No. 13 of 1978 filed by the opposite party against the petitioners. The said suit relates to the Digamber Jain Mandir situate on Station Road, Jaipur. It has been registered as a public trust under the provisions of the Rajastnan Public Trusts Act, 1959 (here in after referred to as the Act) and by order dated 27th, 1974 passed by the Assistant Commissioner, Devasthan, Jaipur Region, Jaipur, entries in relation to the said Trust have been made in the Register of Public Trusts wherein certain properties have been shown as belonging to the Trust. The said order of the Asstt. Commissioner was affirmed, in appeal, by the Devasthan Commissioner, Rajasthan by his order dated 29th March, 1976. Feeling aggrieved by the aforesaid orders passed by the Assistant Commissioner Devasthan, and the Commissioner, Devasthan and the entries made in the Register of Public Trusts in pursuance of these orders, the non -petitioner has filed suit referred to above. The said suit was originally filed under Section 22 of the Act. The suit has been contested by the petitioners and on the basis of the pleadings the issues were framed by the trial court on 4th May, 1979. Issue No. 12 as framed by the said order was as under: .........[vernacular ommited text]........... It appears that the suit was dismissed on 17th August, 1981 under Order 17 Rule 3 CPC but on appeal, this Court by its judgment, dated 17th April, 1987 set aside the said order dated 17th August, 1981 and remanded the suit for trial. After the matter had been remanded under the order dated 17 -4 -1987 the petitioners moved an application before the trial court for treating Issue No. 12 as a preliminary issue under Order 14, Rule 2, CPC and for deciding the same before other issues on the ground that the said issue raises pure questions of law and no evidence is required for deciding the said issue. On the said application the trial court passed an order dated 23rd May, 1987 whereby it accepted the application of the petitioners and directed that arguments would be heard on issue No. 12 which would be treated as a preliminary issue. Thereafter the non -petitioner got the plaint amended so as to seek a declaration that the suit property which has been entered as property belonging to the Trust in the Register of Public Trusts under Section 21 of the Act, is the personal property of the non -petitioner. The matter was considered by the trial court on 15th July, 1987 and the court observed that Issue No. 12 was a composite issue wherein the plaintiffs had also sought a declaration that the property in dispute is not the property of the Trust and for the purpose of deciding that part of the issue it was necessary to record evidence and that it would not be advisable to decide only a part of the issue. The learned Addl. District Judge, therefore, held that arguments could not be heard on issue No. 12 as directed under order dated 23rd May, 1987. In the said order the Addl. District Judge observed that if after filing of the amended written statement issues are framed and if any such issue can be decided without recording any evidence, then the matter would be considered at that stage. After passing of the aforesaid order dated 15th July, 1987 the issues were reframed on the basis of the amended plaint and the amended written statement on 22nd July, 1987. In the amended issues, Issue No. 12 is as under: .........[vernacular ommited text]........... Thereafter the petitioners moved another application whereby they prayed that Issue No. 12, in the issues as re -framed, may be heard and decided as a preliminary issue under Order 14 Rule, 2 CPC. The said application was rejected by the Addl. District Judge by his order dated 25th July, 1987. In the said order the Addl. District Judge has observed that by deciding Issue No. 12 the entire suit could not be disposed of and that in case where the decision on issue of law does not fully dispose of the suit then the said issue must be decided along with other issues. Feeling aggrieved by the aforesaid order dated 25th July, 1987, the petitioners have filed this revision.

(2.) SHRI B L. Luhadia, the learned Counsel for the petitioners, has urged that the Addl. District Judge has misdirected himself in passing the order dated 25th July, 1987 and in rejecting the application of the petitioners on the view that an issue of law should not be decided as a preliminary issue if the decision on that issue does not lead to disposal of the entire suit. The submission of Shri Luhadia is that under Order 14 Rule 2 CPC, it is permissible for the Court to decide an issue of law as a preliminary issue if as a result of the said decision the whole case or any part thereof may be disposed of and since in the present case, the decision on issue No. 12 would result in disposing of a major part of the case set up by the non -petitioners, this was a fit case in which the Addl. District Judge should have decided Issue No. 12 as a preliminary issue under Order 14 Rule 2 CPC. Shri Luhadia has also urged that if issue No. 12 is not decided at this stage and is decided along with other issues, the trial would be unnecessarily prolonged and evidence would be adduced in relation to matters in respect of which the suit is not maintainable under Section 22 of the Act in view of the law laid down by the Supreme Court in Abdul Karim Khan and Ors. v. Municipal Committee, Raipur AIR 1965 SC 1774, and by this Court in Mehta Charity Trust Pali and Ors. v. Gulam Rasool and Ors. 1986 RLR 695 In this regard Shri Luhadia has pointed out that this Court in its order dated 17th April, 1987 has directed for expeditious trial of the suit and it has been urged by Shri Luhadia that if Issue No. 12 is decided as a preliminary issue, evidence in respect of many matters raised by the non -petitioner in the suit would become unnecessary.

(3.) RULE 2 of Order 14 CPC has been substituted by the Code of Civil Procedure (Amendment) Act, 1976 and it reads as under: