:1: :1: :1: SRP. HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6707 OF 2007. Kanthan L. Andrews, AGe: 52 years, Occu: R/a: Salasar Jyot Bldg., 7th Floor, Flat No.783, Bhayandar (West), Janta Rd., Dist: Thane. ..Petitioner. Versus. Prakash Pukhraj Porwal, Age: 44 years, Occu: Business, R/a: uran, Islmapur, Tal: Walwa, Dist: Sangli. ..Respondent. --- Ms. V. S. Mhaispurkar for the petitioner. Mr. R. S. Datar for the respondent. CORAM: S.B.MHASE,J. CORAM: S.B.MHASE,J. CORAM: S.B.MHASE,J. DATE: JANUARY 9, 2008. DATE: JANUARY 9, 2008. DATE: JANUARY 9, 2008. ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. 1. Heard. Rule returnable forthwith. 2. The order dated 16th August 2007 passed by the Civil Judge, Senior Division, Islampur below Exhibit 70 in Special Civil Suit No. 19 of 2005 is under challenge. Special Civil Suit No. 19 of 2005 has been filed by the respondent - plaintiff for recovery of certain amounts. According to the respondent - plaintiff the cause of action for filing the suit has taken place at Islampur, and therefore, the respondent - plaintiff has instituted the suit at :2: :2: :2: Islampur. Accordingly, there are pleadings in paragraph no.6 of the plaint. The petitioner has raised objection in respect of the territorial jurisdiction in the written statement. However, while framing the issues, it appears that the issue in respect of the jurisdiction has not been framed by the Court. Therefore, the petitioner gave application Exhibit- 70 requesting the Court to frame the said issue and further requested the Court to try the said issue as a preliminary issue. . Civil Judge, Senior Division has rejected the said application. Issues arise out of the pleadings of the parties. The pleadings as revealed from the plaint and written statement show that the issue of jurisdiction arises between the parties. Therefore, the Court should have framed the said issue. Learned counsel Mr. R. S. Datar appearing on behalf of the respondent fairly conceded for framing of such issue. However, Mr. Datar opposed for treating the said issue as a preliminary issue. Learned counsel for the petitioner also tried to submit that the said issue should be treated as a preliminary issue since it is an issue pertaining to the law. 3. So far as the framing of issue is concerned, this Court finds that there is material to :3: :3: :3: frame the issue and so also there is concession from the respondent to frame the issue. In the circumstances, Civil Judge, Senior Division, Islampur is hereby directed to frame the issue in respect of the territorial jurisdiction to entertain the suit, and to that extent the writ petition is allowed. However, so far as the treating the issue of jurisdiction as preliminary issue is concerned, this Court finds that it is well settled principle under Order-14 of the Code of Civil Procedure, 1908 that all the issues are required to be decided at the final hearing of the trial unless the issue falls in the category of the preliminary issue under sub-rule (2) of Order-14. However, in the present matter the issue of jurisdiction is not purely a question of law, but it is the mixed question of fact and law. Therefore, unless the facts are established the said issue cannot be decided. Therefore, this issue cannot be treated as a question of law which can be decided as preliminary issue under Order-14, Rule-2 of the CPC. Therefore, the prayer of the petitioner to treat the issue of jurisdiction in the present matter as preliminary issue is hereby rejected. 4. In short, therefore, the writ petition is partly allowed; the order dated 16th August 2007 is confirmed to the effect that the issue shall not be treated as preliminary issue, however, so far as not :4: :4: :4: framing of the issue is concerned, it is set aside. It is brought to my notice that the matter was already time bound by the orders of this Court. It is made clear that the time schedule given by this Court in the earlier proceeding shall be adhered to by the Trial Court. 5. The trial in the matter has already commenced. However, the commencement of the trial will not be in any way a difficulty to frame the issue or additional issues. Issues can be framed even after the close of the trial if they arise out of the proceeding and are required to be decided. This exercise is required to be done so as to avoid the multiplicity of litigation. If the issue arises between the parties, but it is not framed, it may demand remand of the matter from the Appellate Court which will give a protracted life to the litigation. Therefore, in such circumstances the Court is under obligation to find out as to whether there are additional issues which can be considered before the decision of the matter. Only thing which has to be borne in mind is that if the fresh or additional issues are framed an opportunity should be given to the parties to lead evidence in respect of the said issue, especially to the parties upon whom the burden to prove the said issue lies. :5: :5: :5: (S.B.MHASE, J.) (S.B.MHASE, J.) (S.B.MHASE, J.)