Civil Revision No.280 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.280 of 2010 (O&M) Date of Decision 20.01.2011 Rajeshwar Kumar ...... Petitioner VERSUS Singh Ram and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Amit Jain, Advocate, for the petitioner. Mr.Krishan Singh, Advocate, for respondent Nos.1 and 2. Mr.Sanjay Verma, Advocate, for respondent No.3. ***** A.N.JINDAL, J: The petitioner has invoked the powers under Article 227 of the Constitution of India while praying for quashing the impugned order dated 16.12.2009, passed by Civil Judge (Junior Division), Jagadhri, allowing the application filed by respondent No.3-defendant No.3 for treating issue No.2 regarding maintainability of the suit, as preliminary issue. Learned counsel for respondent No.3 has submitted that the trial Court has rightly ordered to treat the issue of maintainability as preliminary issue whereas learned counsel for the petitioner states that issue of maintainability does not fall within the purview of Order 14 Rule 2 CPC, which reads as under:- “Court to pronounce judgment on all issues – (1) notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Civil Revision No.280 of 2010 2 (2) Where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if issue relates to -- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” On perusal of the aforesaid Rule, it shows that the prayer for treating the issue as preliminary, if falls within the Clause (a) & (b) of the said Rule, would be considered at the initial stage. However, in this case, the petitioner has already led the evidence with regard to maintainability, which is subject to rebuttal by the defendants-respondents. Moreover, this issue does not purely involve the question of law but question of law challenging the competency of the defendant Nos.1 and 2 to enter into agreement to sell, therefore, the Court should not have ordered to treat this issue as preliminary issue. Furthermore, in the instant case, the petitioner has already led sufficient evidence and few witnesses remain to be examined. In this view of the matter, the Court should not have ordered to treat issue No.2 as preliminary issue. However, a direction could be issued to the trial Court to dispose of the suit as early as possible. In the peculiar circumstances of the case, this petition is accepted, impugned order is set aside and the trial Court is directed to proceed in accordance with law and dispose of the case within six months. (A.N.Jindal) Judge 20.01.2011 mamta-II