CIVIL REVISION No.2101 OF 2001 BIHAR STATE ELECTRICITY BOARD ------------- Petitioner Versus PRABHAKAR DWIVEDI & ORS ------------- Opposite Parties. ------- For the Petitioner : Mr. Vinay Kirti Singh, Advocate. For opposite party no.1: Mr. Rana Ishwar Chandra, Advocate. ------- P R E S E N T THE HON'BLE MR. JUSTICE S.N.HUSSAIN S.N.Hussain,J. Heard learned counsel for defendant no.1-petitioner and learned counsel for plaintiff-opposite party no.1. Opposite Parties no.2 to 13 are proforma opposite parties and this civil revision has already stood dismissed against them. 2. This civil revision has been filed by defendant no.1-petitioner challenging order dated 29.08.2001 by which learned Subordinate Judge, 3, Buxar observed that the question of preliminary issue raised by defendant no.1-petitioner in a petition filed under Order VII Rule 10 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’ for the sake of brevity) will be considered at the time of final disposal of Title Suit no.88 of 1999. 3. The aforesaid suit was filed by plaintiff-opposite party no.1 for declaration that his service in the Board on the basis of certificate issued by Labour Employment & Training Department is valid and the termination of his service is against the specific provision of law and hence he should be put in service with all his pay as a regular cadre. 4. It transpires that defendant no.1-petitioner appeared and contested the suit, whereafter issues were framed and evidence of the parties had started. However after three witnesses were examined on behalf of defendant no.1, he filed a petition on 06.06.2001 under the provision of Order VII Rule 10 of the Code for returning the plaint to the plaintiff for filing it before the authority under Industrial Disputes Act, 1947, as the suit before the learned Subordinate Judge was not maintainable. A petition for vacating the stay was filed on behalf of the plaintiff in which it was clearly 2 stated that the suit was maintainable before the learned Subordinate Judge in accordance with law. 5. The learned court below heard the parties on the said issue and passed its impugned order dated 29.08.2001 holding that the question as to whether the instant dispute was an industrial dispute is an issue of law and fact both, hence this issue can be decided only at the time of final disposal of the suit and directed that the petition under Order VII Rule 10 of the Code be considered at that time. 6. After hearing the parties and after perusal of the materials on record, including the impugned order, it is quite apparent that the pleadings of the parties are complete and from the pleadings of the parties itself it would be quite apparent whether the dispute raised by the plaintiff comes under the purview of Industrial Disputes Act and hence it was incumbent upon the learned court below to decide the same at this stage itself without waiting for the final hearing of the suit. In the said circumstances, it is quite apparent that the learned court below has failed to exercise the jurisdiction vested in it by law and accordingly, the impugned order is set aside and the matter is remanded to the learned court below to decide the aforesaid petition filed by defendant no.1 under the provision of Order VII Rule 10 of the Code afresh at this stage itself expeditiously within a period of two months from the date of receipt/production of a copy of this order without giving any undue adjournment to any of the parties. 7. With the aforesaid observation/direction, this civil revision is allowed. ( S.N.Hussain,J.) Patna High Court, Patna Dated, 23rd April, 2008 Sunil/N.A.F.R