IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 14 of 2008. Date of Decision: 13.3.2008 Sanjay Goel ….Petitioner. Versus. Atul Goel & anr. ....Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Appellant(s): Mr.Atul Jhingan, Advocate. For the Respondent(s): Deepak Gupta, J. (Oral). This petition is directed against the order of the learned Civil Judge ( Jr. Div) Court No.I, Paonta Sahib, District Sirmaur, whereby he has rejected the application for deciding the issue of jurisdiction as a preliminary issue. Admittedly, the suit was filed in the year 2004. Written statement appears to have been field on 21.6.2004. Issues were framed on 15.12.2004. Thereafter, the evidence on behalf of the petitioner was led and the case was going on for the last more than 3 years. On 26.5.2007, an application under Order 14 rule 11 CPC was filed with a prayer that the issue of jurisdiction be treated as a preliminary issue since the court lacks inherent jurisdiction to hear the suit. - 2 - I am not going into the merits of the contention raised by the petitioner as to whether the Civil Court has the jurisdiction to hear the suit or not, since, in my view, the application cannot be entertained at this stage. Order 14 of sub rule 2 CPC reads thus:- “2. Court to pronounce judgment on all issues:- (1) Notwithstanding that 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. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be deposed of on an issue of law only, it may try that issue first if that 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.” This provision has been considered and interpreted by a Full Bench of this Court in Prithvi Raj Jhingta and another versus. Gopal Singh and another, 2006 (3) SLJ HP 2103, wherein this Court held as follows:- “8. Based upon the aforesaid reasons therefore, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situation perceived or warranted under sub-section (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule(1), clearly and - 3 - explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because sub-rule(1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit.” Mr. Jhingan learned counsel for the petitioner has sought to distinguish the aforesaid decision of the Full Bench mainly on the ground that whereas in the case before the Full Bench the evidence had been led on all the issues in the present case only part of the evidence of the plaintiff has been completed. A perusal of sub-rule (2) of Rule 2 quoted hereinabove clearly indicates that at the time of framing of the issues, the court must decide whether it has to decide the preliminary issue or to proceed with the suit on merits. In fact, if a literal meaning is given to sub rule (2) at the stage of framing issues, if the court thinks that the suit can be decided on a preliminary issue falling with the ambit of the sub-rule, it should postpone the framing/settlement of other issues. - 4 - Even if this literal meaning is not taken and it is construed that even if all issues are framed by the court and the court may decide to try a preliminary issue, the decision to do so must be taken at this stage itself. Once the parties or any one of them has led evidence on the other issues, then the court can no longer abdicate its function of deciding all the issues together in terms of the rule. Sub rule (2) has to be read as an exception to sub rule (1). Sub rule (1) clearly mandates that the court shall pronounce the judgment on all issues. Sub rule (2) being an exception is to be given a narrower meaning. The exception cannot override the provisions of the main enactment. Therefore, I am of the view that once the plaintiff had led evidence on other issues without any objection from the defendant, no application for treating the issue of jurisdiction as a preliminary issue could not have been entertained at a later stage. The defendant at the time of framing of issues or before the evidence was led should have filed an application that a particular issue falls within the meaning of sub rule (2) and should be treated as a preliminary issue. After the evidence has been recorded on other issues, the party loses his right to claim that the issue of jurisdiction should be treated as a preliminary issue. Thereafter Mr. Jhingan has also contended that the application was also filed under Order 7 rule 11 CPC and the plaint should be rejected under the provisions of rule (d) since it is barred by law. First of all, no such specific plea has been taken in the written statement. Secondly, rejection of a plaint has to be made at the time when the - 5 - plaint is initially examined. A bare reading of the plaint does not show that the suit is barred by any law. It is well settled law that it is the plaint only which is to be seen for rendering a decision under Order 7 rule 11 CPC. In any event, I am of the opinion that this matter could not have been raked up at this belated stage. Therefore, I find no merit in this petition which is dismissed. March 13, 2008. ( Deepak Gupta ), J. s.