HIGH COURT OF CHHATTISGARH. BILASPUR Writ Petition (2271 No. 5080 of 2009 PETITIONERS DEFENDANTS 1. Shrikant Sarda aged about 54 years, S/o Late Shri Ratanlalji Sarda 2. Vishnudas Sarda, aged about 45 years, S/o Shri Bhagirath Ji Sarda Both R/o Sarda Traders, Old Civil Lines, Rajnandgaon 3. Pandit Shrikant Maharaj aged about 50 years, S/o Pt. Yamuna Prasad Mishra, Present Address, Ramayan Satsang Bhawan, Parvati Sadan, Bramhinpara, Rajnandgaon Versus Smt. Parvati Bai, aged about 82 years, W/o Late Shir Ratanlal ji Sarda, By Occupation hlouse Wife, R/o through Laxminiwas Sarda, Vardhman Nagar, Rajnandgaon Writ Petition underArticle 227 of the Constitution oflndia RESPONDENTS PLAINTIFF Appearance : Shri Parag Kotecha, counsel for the petitioners. ORAL ORDER (07.09.2009) SUNIL KUMAR SINHA. J. Heard. The petitioners/defendants have filed this petition under Article 227 of the Constitution of India challenging the validity of order dated 27.7.2009 passed in Civil Suit No.16-A/2007 by the Additional District Judge (F.T.C.), Rajnandgaon, whereby the said Court after hearing the arguments on preliminary issues (issue No. 7 and additional issue No.1) directed that these issues shall be decided along with the other issues after taking evidence of both the parties on all issues. It appears that an application (I.A. No. 09) was filed by the defendants for grant of permission to adduce evidence for decision of the preliminary issues. This was dismissed by the trial Court on 3.11.2008. Against the said order, the petitioners filed a writ petition \(W.P.{227} No. 107/2009) which was heard and dismissed by this W.P.f227)No. 5080 of 2009 Court on 23.4.2009 and the order passed by the triat Court was confirmed. The trial Court, then fixed the matter for hearing arguments on the preliminary issues and thereafter, came to the conclusion that since the issues involve mixed question of fact of law, therefore, they cannot be decided as preliminary issues and then fixed the mater for settlingon 10.8.2009. Mr. Parag Kotecha submits that the order passed by the trial Court is not in accordance with law 1 have gone through the contents of the two orders passed by the trial Court and the earlier order passed by this Court in W.P.(227) No. 107/2009. In Maior S.S. Khanna -Vs- Bria. F.J. Dillon. AIR 1964 S.C. 497, it was held by the Apex Court that under Order XIV Rule 2 of the Code of Civil Procedure, 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 disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised onty where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code of Civil Procedure confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit. Further the above decision of the Supreme Court was considered in the matter of Ramesh B. Desai and others -Vs- Bipin Vadilal Mehta and others (2006) 5 SCC 638 and it was held by the Apex 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 MajorS.S. Khanna's case (supra) still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision offact, it cannot be tried as a preliminary llssue. ,.^^F^^ ,-^^-^ ,^"\.^-^\ '^ ,?' i^_^.^^ | '*... -^!/ •^.(T^s^y"" W.P. f2271 No. 5080 of 2009 Relying on the above decisions of the Apex Court, this Court has also taken this view in Kanhaivalal -Vs- Smt. Laiwanti Devi & others. 2008 (2) C.G.L.J. 313 that where the issues framed are the mixed questions of facts and law and they are to be decided after taking evidence of the parties, the trial Court would be justified in refusing to decide those issues as preliminary issues. In view of the above principles laid down by the Apex Court, 1 do not find any illegality or infirmity in the impugned order passed by the trial Court on 27.7.2009. The petition has no merits. The same is liable to be dismissed and is hereby dismissed at the motion stage itself. , __„— Sd/- , Sunil Kumar Sinha judge vatti