In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 3297 of 2007 Date of decision: May 27, 2009 Union of India and others .. Petitioners Vs. M/s Paras Rice Mills .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sukant Gupta, Advocate for the petitioners. Mr. S.S. Dinarpur, Advocate for the respondent. A.N. Jindal, J Union of India has invoked the provisions of Article 227 of the Constitution of India for quashing the order dated 28.4.2007 passed by the Civil Judge (Sr. Division), Kurukshetra, whereby its application filed under Order XIV Rule 2A and Order VII Rule 11 read with Section 151 CPC was dismissed. During the pendency of the suit, when it was fixed for defendant's evidence, the defendants No.2 to 4-petitioners (herein referred as 'the petitioners') moved an application on the averments that since the action of the Income Tax Authorities has been challenged, the civil court has no jurisdiction in view of Section 293 of the Income Tax Act, 1961 (for short 'the Act'). According to Section 293 of the Act, the civil court cannot examine the validity of the assessment as has been held in case Income Tax Officers and Another Vs. Shanti Parshad Jain and Ors. 167 I.T.R. 238, Bansal Exports Pvt. Limited Vs. Union Saw Mills and Ors. 217 I.T.R. 83. In view of the specific bar with regard to maintainability of the suit and also the jurisdiction of the civil court to try such suit, the plaint needs to be rejected. Further as per provisions of Section 9 of CPC, the civil court has no jurisdiction to try this suit. The respondent submitted reply to the application raising a preliminary objections while urging that the question of jurisdiction is mixed question of law and facts. In fact the petitioners wanted to avoid cross examination on DW-1. The defendant cannot seek protection of Section 293 of the Act. This is suit for recovery of Rs.9,00,000/- as Civil Revision No. 3297 of 2007 -2- damages against the defendant in their official as well as personal capacity for causing him undue loss while acting in a bad faith and in a clandestine manner, is maintainable. The civil court has jurisdiction to try the same. It may be noticed necessary issues have already been framed and the case is now fixed for defendant's evidence. I have been informed that this suit is pending since 1999 and it is now near completion. The objections as raised in the application have already been raised in the written statement and the evidence on the said issues is being led and after completion of the evidence of the defendant, the trial court will adjudicate the same on merits. The party claiming preliminary issue must raise such objection immediately before the settlement of the issues, on the basis of which the entire suit could be disposed of. A similar view was taken in case Punjab Digital Industries System Limited, Mohali Vs. Presiding Officer, Labour Court, Patiala and another, 2004 (1) PLR 328, wherein it was observed as under :- “.......... The learned Presiding Officer, Labour Court has rightly held that the application has been filed by the management only to prolong the litigation, as the management has not raised any plea of preliminary issue either at the time of filing written statement or before the settlement of the issues. As it has been observed above, that after the settlement of the issues and recording the evidence of the parties, the preliminary issue cannot be claimed.” It may also be noticed that earlier, the amendment of the Code in 1976, the court was obliged to try those issues first which it found that the same is on the issue of law. Now after the amendment of Order XIV Rule 2 CPC, it is discretionary for the court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue. Similar view was taken by the Full Bench of Allahabad High Court, in case Sunni Central Waqf Board and others v. Gopal Singh Vishrad and others, AIR 1991 Allahabad 89. As a matter of fact, this application at the fag end of the case when the trial is likely to be concluded could be discouraged because of the reason that the Code of Civil Procedure being a procedural Civil Revision No. 3297 of 2007 -3- code has been enacted to govern, the adjudication of the claims raised by the parties, the process to be followed by the civil court in this regard has been depicted in a systematic manner. The receipt of the plaint is followed by filing of the written statement and thereafter, replication could be invited; if the parties are at variance on certain points and then after the admission and denial, the discovery of the documents, the court should frame issues and invite evidence of the parties. Before the issues are framed, the court is to provide opportunity to the parties to move different types of applications and so also after issues are framed and the evidence is sought. This scheme of the act has been duly depicted in the interest of smooth conduct of the trial and it is only in the rarest of the rare cases some applications could be entertained at any stage of the trial. The words “at any stage of the trial” cannot be construed to mean that the matters which are being decided by way of issues regarding which the parties have been invited to lead evidence, could be decided even if on the said issue the court has opted to collect evidence. As such, entertaining of such applications, that too at the fag end of the case would amount to hampering of the trial. Surely, the legislature never intended to frame such scheme. Either such issues should be decided at the preliminary stage or if the party remained silent or inadvertent or the court did not deem it necessary to treat such issues as preliminary, then it is not advisable to pick up such issues after breaking the thread and sit over to decide the application by stalling the trial. The entertaining of such applications at the inappropriate stage, would be construed as to decide that issue alone without evidence for which court had already directed the parties to lead evidence. I am afraid this was the object of the Code. Consequently, the court should refrain from entertaining such applications at the fag end of the case. Resultantly, finding no merit in the petition the same is dismissed. Copy of the order be placed before Hon'ble the Chief Justice for approval and circulating the same in the Sessions Divisions of the State of Punjab, Haryana and U.T. Chandigarh. May 27, 2009 (A.N. Jindal) deepak Judge