JUDGMENT
Sudhir Narain, J.
1. The
petitioners seek a writ of certiorari quashing the orders passed by Respondent Nos. 2, 4 and 5 whereby the prayer of the petitioners to decide
certain issues as preliminary issues before deciding the suit was rejected.
2. The Collector, Shahjahanpur filed a suit under Section 229B/209 of U. P. Zamindari Abolition and Land Reforms Act on behalf of the Gaon Sabha alleging that the land belonged to the Gaon Sabha and the petitioners have no right over the land in dispute and if they are found in possession, they may be evicted.
3. The petitioners filed written-statement and claimed that they have a right over the land in dispute. It was further alleged that during consolidation proceedings, the plaintiff could raise an objection in regard to the title and right over the land in dispute and such objection having not raised, the claim of the plaintiff-respondent was barred under Section 49 of U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). It was further pleaded that the Collector had no power to Institute the suit on behalf of the Gaon Sabha.
4. The trial court framed various issues. Issue No. 3 was whether the suit was barred by Section 49 of the Act, Issue No. 6 related to the question as to whether the Collector has power to file the suit on behalf of the Gaon Sabha and the State Government and Issue No. 8 was whether the Court fee paid was sufficient.
5. The petitioners filed an application that these issues may be decided as preliminary issues. The trial court rejected this application on 22.11.1984 taking the view that these Issues can be decided along with other issues as they involve questions of facts as welt as law. The petitioners filed a revision against the said order before, the Additional Commissioner which was dismissed on 5.6.1985. The Board of Revenue dismissed the revision against this order on 18.2.1998.
6. Sri Y. S. Saxena, learned counsel for the petitioners contended that Section 49 of the Act bars the jurisdiction of the Court to adjudicate upon any matter which has either been decided by the consolidation
authorities or which could or ought to have been taken under the provisions of the Act. He has placed reliance upon a decision rendered in Jaswant Kumar v. State of U. P. and others, 1979 ALJ 276, wherein it was held that the finding recorded by the consolidation authorities is binding on the ceiling authorities and the same cannot be challenged in any civil or revenue court as Section 49 of the Act is based on the rule of res judicata so far as the question relating to the declaration and adjudication of the rights of the tenure-holders in respect of the holdings are concerned.
7. The question is whether these issues ought to have been decided as preliminary issues by the Courts below. Order XIV, Rule 2 (2). C.P.C. provides 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 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 of that issue.
8. Sub-rule (2) leaves discretion upon the Court. It is not mandatory on the Court to decide the question of the jurisdiction or other issues relating to the maintainability of the suit. Sub-rule (1) of Rule 2 mandates a Court that notwithstanding that a 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.
9. The intention of the Legislature is that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues, be avoided as far as possible. If all the issues are
decided, that may avoid unnecessary multiplicity of the proceedings in relation to deciding the preliminary issue. It is open for the Court, however, in some circumstances if it is apparently clear that the suit is not maintainable or barred by jurisdiction, to dispose of such issue, may decide such issues as preliminary issues.
10. In Smt. Fatima Bibi v. Board of Revenue, Allahabad and others, 1981 ALJ 812, the Court held that if the trial court had taken decision to consider the question of bar of suits under Section 49 of the Act at the time of the judgment and not as a preliminary issue, the Court could not be said to have patently erred in not deciding the issue as preliminary issue, as it was within the discretion of the Court to try an issue of jurisdiction or bar of maintainability of the suit as a preliminary issue. The Court pointed out that sub-rule (1) of Order XIV of C.P.C. the word ‘shall’ has been used whereas in sub-rule (2) the word ‘may’ has been used which clearly indicates that it is discretion of the Court to decide any issue as preliminary issue.
11. In Dhirendranath Chandra v. Apurba Krishna Chandra and others, AIR 1979 Pat 34, the question was whether the suit was barred by the provisions of Section 66(1) of the Code of Civil Procedure and such issue be decided as a preliminary issue, it was held that it was not obligatory on the Court to try the issue as a preliminary Issue as sub-rule (2) of Rule 2 of Order XIV leaves discretion on the Court to try an Issue as preliminary issue. In Usha Sales Ltd. v. Malcolm Gomes and others, AIR 1984 Bom 60, the Court held that it is not obligatory on the Court to decide issue relating to the jurisdiction or legal bar to the suit as a preliminary issue.
12. The orders of the Courts below. In considering that the preliminary issues are to be decided after taking evidence along with other issues do not suffer from any manifest illegality. There is no merit in the writ petition and, it is, accordingly dismissed.