^ l^-?pT"3- HIGH COURT OFCHHATTISGARH. BILASPUR Writ Petition No. 5493/2005 PETITIONER/ DEFENDANT No.l Kanhaiyalal, S/o Late Rohit Kumar Chandra, aged about 42 -years, R/o Chakradhar Nagar, near WatGr Tank, Raigarh, Chhattisgarh RESPONDENTS Versus 1. Smt. Lajwanti Devi, Widow of Late Amar Das, aged about 63 years, 2. Bihari Das, s/olate Amar Das, aged about 42 years, 3. Maadho Das, s/o Late Amar Das, Aged about 46 years, 4. Lakhan Das, S/Q Late Amar Das, aged about 44 years, ........Plaintiffs Respondents/PlaintiffsNo.l to 4 above; all R/o Smdhi Colony, Raigarh, Tehsil SE Distnct: Raigarh, Chhatysgarh. 5. Jagdish Kumar, s/o Gbvind Ram, aged about 22 years, 6. Manohar Das, s/o Crovind Ram, aged about 25 years, 7. Omprakash, S/o Govind Ram, aged about 24 years, 8. Anil Kumar, S/o Govind Ram, aged about 18 yeara. 9. Jai Kumar, s/o Govind Ram, aged about 15 years, Respondents N6,5 to 9 above, all R/o Smdhi Colony, Raigarh, Tahsil 85 District, Raigarh, Chhattisgarh. 10. Smt. Tilli Bai, Widow ofLate Chelaram, aged about 48 years, r/o Telibaindh, Raipur ! 11. Smt. Bhagwanti@ Ashapevi, D/ojLate Chelarain, aged about 48 years, | R/o Telibandh,Raipur,Chhattisgarh. | W.P. No.5493/2005 ^ 12. Indira Bai, Widow of Late Lodharam. 13. Jailal, s/o Late Lodharain, 14. Shrichand, s/o Late Lodharam. 15. Ashok, s/o Late Lodharam. 16. Raj Kumar, s/o Late Lodharam Respondents No.12 to 16 above, aU R/o Near Bihari Talkies, Bilaspur, Chhattisgarh. 17. Chhattumal, s/o Tularam, R/o Sindhi Colony, Raigarh, Chhattisgarh. 18. Shankarlal, s/o Tularam, R/o Near Bihari Talkies, Bilaspur, Chhattisgarh. 19. Premi Bai, D/o Late Amar Das. 20. NeeU Bai, D/o Late Amar Das 21. Janki Bai, d/o Late Amar Das Respondents no.19 to 21 abpve, all R/o Sindhi Colony, Raigarh, Chhattisgarh, 22. Udham Das, S/o Parmool, R/o Sindhi Colony, Raigarh, Tehsil and district Raigarh, Chhattisgarh. 23. State of Ghhattisgarh, through the Collector, Raigarh, District Raigarh, Chhattisgarh Writ petition underArticle 227ofthe Constitution of India Appearance: Shri Sanjay K. Agrawal, Cdunsel for the Petitioner. Shri Parag Kotecha, counsel for respondents no.l to 4. Shri Arun Sao, Govt. Advocate for the State/respondent no.23, . None for other respondenfs. I^I^ILl!..^;::: <..,,.;..^:::^r^A::^^. ^M&^;S.fe^lS^-33^ iil^iiiiilidiKiiB^.iSaU-iElsaaBaiiSSiSB^SB W.P. No.5493/2005 ORALORDER (22.02.2008) SUNIL KUMAR SINHA. J. (1) Heard. (2) By this writ petition, chaUenge is made to the order dated 12.9.2005 passed by the Ist Civil Judge, Class II, Raigarh, m Civil Suit No.32-A/2005 whereby the said Court rejeeted the application filed by the petitioner/defendant no.l under Order XIV Rule 5 read with section 151 of the Code of Civil Procedure praying for firstly deciding the issues No.6 85 8 to 10 as preliminary issues. (3) It appears that initially the plaintiffs, respondents no. 1 to 4 herein, filed a suit for declaration of title and permanent injunction and lafer on, relief of possession was amended. A copy of the plaint has been filed as Annexure P-1. The petitioner/Defendant no.l filed his written statement (Annexure P-2) and taking many other groynds he also took the ground of limitation as also valuation vide Para 21 of the written statement by pleading that the suit of the plaintiff was barred by limitation as neither the plaintiff nor the defendant no.2 to 19 were having any Utle and possession over the suit land since 05.7.1983. He further pleaded fhat in the month of January 2001, he has constructed a house over the suit land by investing a huge amount and the valuation of the saine was detemuned by a registered valuer Mr.L.N.Patel in sum of Rs.8,30,640/- and this is the subject matter of the suit and if this is also taken into account in. the valuation, the suit filed by the plaintiff shall be ^barred by pecuniaryjurisdiction ofthe concemed Court. (4) The trial Court framed 10 issues m this case, among which, issues no.6 85 10 relate to valuation and pecuniary jurisdictidn of the Court; issue no.9 relates to limitation and issue no.8 relates to niisjoinder ofparties. It is for these issues i.e., Issue no.6, 8, 9 SE 10, the defendant no.l had moved an application for deciding them as preliminary issues. •'fSS'. wi la isa W.P. No.5493/2005 (5) The (Fisl Court held that since the evidence is required for deeiding these issues, it would not be possible to decide these issues as preliminary issues. (6) Leamed counsel for the petitioner/defendant no.l argues that according to the provisions of.Order XIV Rule 2(2) C.P.C., it has been provided that where issues both oflawand offact arise in fhe sahie suit, and theCoiut is of 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 the condidons mentioned in this sub-section are there. He prays for setting aside the order passed by the Court. (7) pn t.he other hand, learned counsel for respondents no.l to 4 (Plaintiffs) supports the order passed by the trial Coiirt. (8) I have heard leamed counsel for the parties at length and have also perused the records ofthe case. (9) In the matter of Ma/or S.S. Khanna -vs- Brig. F.J. Dillon. AIR 1964 S.C. 497, it was held by fhe Apex Court that under Order XIV Rule 2 of the Code of Ciyil Procedure, where issues both oflaw and offact arise in the Saine suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues.oflaw only, it shall try those issues flrsf, and for that purpose may, if it ftiinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to tiy issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code of Ciyil Prpcedlire confers no jurisdictioh upon the Court to tiy a ^uit on niixed issues of law and fact as preliminary issues. Normally all the issues in a suitshbuld be tried by the Court; not to do so especially when the decision on issues even of law deperid updri the decisioh of issues of fact, would result in a lopsided trial of the suit. ' y (10) Further the above decision of the Sypreme Gourt was considered in the matter of Rmnesh B. Desat and others -vs- uyifliiiUiiiifcsjiii W.P. No.5493/2005 Biain Vadilal Mehta and others (2006) 5 SCC 638 and it was held by theApex Court that though there has been a slight amendment in the language of Order XIV Rule 2 C.P.C., by the amending Act, 1976 but the principle enunciated in Major S.S. Khanna's case (supra) still holds good and there can be np departure from the principle that the Code confers no jurisdietion upoh the Court to tiy a suit on mbced issues of law and fact as a preliininary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue. (11) If we apply the above principles in the facts of the present case, it would appear that the main issues, prayed for trying them to be preliminary issues, are the issues pertaining to limitation as also valuation and pecuniary jurisdiction of the Court. Admittedly, the issue of limitation has been framed on the . pleadings of the pardes which relate to question of facts pertaining to dispossession as also right to possess the property and such question is not a pure question of law but there.is necessary implication offact also and iftruly classified that would be a mbted question of fact and law. As far as the issues relating to valuation as also pecuniary jurisdiction are concemed, the pleadings of the defendant in Para 21 of the written statement would show that he has evaluated the subject niatter of the suit in his own manner and has pleaded that he has raised construction over the suit property, the value of which amounts to Rs.8,30,640/-. This is a question of fact and unless a proper valuation is determined, a Court would not be able to come to a conclusion as to whether the siiit would be barred by pecuniary jurisdiction ofthe Court or not. Therefore, this issue can also be classified as the issue which relates to mKed question of facts and law and in these circumstances if the trial Court has taken this view that all these issues would require evidence for their decision, it cannot be said that the view taken by the trial Court is not sustainable and the same is an erroneous view, particularly, with regard to the provisions of Order XIVRide 1 85 2 C.P.C. W.P. No.5493/2005 (12) In the opinion of this Court, the trial Court has righdy taken this view that the issues framed are the mbced questions of facts and law and they are to be decided after taking evidence of the parties and it has rightiy refused to decide those~issues as preliniinary issues. (13) In the facts and circumstances of this case, I do not find any illegality in the impugned order passed by the trial Court. The petition has no merit. The same deserves to be and is accordingly dismissed. In consequence of dismissal of the writ petition, the stay granted by this Court on 15.2.2007 stands vacated. (14) No order as to costs. Sd/- SunilKumarSinha Judge