ORDER
Sunil Kumar Sinha, J.
1. Heard.
2. By this writ petition, challenge is made to the order dated 12-9-2005 passed by the Ist Civil Judge, Class II, Raigarh, in Civil Suit No. 32-A/2005 whereby the said Court rejected the application filed by the petitioner/defendant No. 1 under Order XIV Rule 5 read with Section 151 of the Code of Civil Procedure praying for firstly deciding the issue Nos. 6 and 8 to 10 as preliminary issues.
3. It appears that initially the plaintiffs, respondent Nos. 1 to 4 herein, filed a suit for declaration of title and permanent injunction and later on, relief of possession was amended. A copy of the plaint has been filed as Annexure P-1. The petitioner/defendant No. 1 filed his written statement (Annexure P-2) and taking many other grounds 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 Nos. 2 to 19 were having any title and possession over the suit land since 5-7-1983. He further pleaded that 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 same was determined by 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 pecuniary jurisdiction of the concerned Court.
4. The Trial Court framed 10 issues in this case, among which, issues Nos. 6 and 10 relate to valuation and pecuniary jurisdiction of the Court; issue No. 9 relates to limitation and issue No. 8 relates to misjoinder of parties. It is for these issues, i.e., issue Nos. 6, 8, 9 and 10, the defendant No. 1 had moved an application for deciding them as preliminary issues.
5. The Trial Court held that since the evidence is required for deciding these issues, it would not be possible to decide these issues as preliminary issues.
6. Learned Counsel for the petitioner/defendant No. 1 argues that according to the provisions of Order XIV Rule 2 (2), CPC, it has been provided that 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 an issue of law only, it may try that issue first if the conditions mentioned in this sub-section are there. He prays for setting aside the order passed by the Court.
7. On the other hand, learned Counsel for respondent Nos. 1 to 4 (plaintiffs) supports the order passed by the Trial Court.
8. I have heard learned Counsel for the parties at length and have also perused the records of the case.
9. In the matter of Major S. S. Khanna v. Brig. F.J. Dillon AIR 1964 SC 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 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 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.
10. Further the above decision of the Supreme Court was considered in the matter of Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. , and it was held by the Apex Court that though there has been a slight amendment in the language of Order XIV Rule 2, CPC, by the Amending Act, 1976 but the principle enunciated in Major S.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 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 parties 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 of fact also and if truly classified that would be a mixed question of fact and law. As far as the issues relating to valuation as also pecuniary jurisdiction are concerned, the pleadings of the defendant in Para 21 of the written statement would show that he has evaluated the subject-matter 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 suit would be barred by pecuniary jurisdiction of the Court or not. Therefore, this issue can also be classified as the issue which relates to mixed 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 XIV Rules 1 and 2, CPC.
12. In the opinion of this Court, the Trial Court has rightly taken this view that the issues framed are the mixed questions of facts and law and they are to be decided after taking evidence of the parties and it has rightly refused to decide those issues as preliminary 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.
14. 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. No order as to costs.