DAYA NIDHI SINGH Vs. KRISHNA MAHTO

JUDGEMENT

(1.) The petitioner, who is defendant no.4 in Money Suit No.01 of 2011, is aggrieved of order dated 16.06.2017 by which his application under Order-VII Rule 11(d) CPC has been rejected.

(2.) Plea urged on behalf of the petitioner is that the question of jurisdiction goes to the root of the matter and while so, the trial Judge should have rejected the plaint under Order-VII Rule 11 CPC on the ground of lack of territorial jurisdiction.

(3.) The defendant no.4 is the Director of the defendant no.2-Company-Civitech Transport (India) Pvt. Ltd. and Managing Director of Defendant No.3-Civitech Construction Pvt. Ltd. He has filed this application after issues were settled in the suit; one of the issues is maintainability of the suit on the question of jurisdiction of the court. It is well-settled that a question of jurisdiction is a mixed question of law and fact and it can be decided only during the trial, except in cases where on a bare reading of the plaint averments it is found that the court has no territorial jurisdiction. After the Code of Civil Procedure (Amendment) Act, 1976 by which Order-XIV Rule 2 CPC has been amended, it is no longer mandatory for the court to decide a preliminary issue and it is rather discretion of the court which in the facts and circumstances of the case as pleaded by the parties, the court may exercise. It is also well-settled that under Order-VII Rule 11 CPC the plaint can be rejected only if from the statement made in the plaint it appears that the suit is barred by any law. On a reading of the plaint averments, the trial Judge has rightly observed that at this stage it cannot be said that the suit is barred by any law.