JUDGMENT
D.S.R. Varma, J.
1. This Civil Miscellaneous Appeal is directed against the order dated 29-6-2002 passed by the Judge, Family Court, Visakhapatnam, in O.P.No. 578 of 2001 filed by the respondent herein under Order XXXIII, Rule 1 of C.P.C., wherein and whereby the Court below permitted the respondent to institute the suit as an indigent person.
2. The O. P. was purported for cancellation of decree of divorce dated 2-5-1990 in O.S. No. 13 of 1989 on the file of the Subordinate Judge, Berhampur, Orissa, allegedly obtained by fraudulent means and for maintenance.
3. The genesis of the decree which is sought to be cancelled and the merits thereof are not relevant for the present to decide the issue involved in this appeal.
4. The respondent is the plaintiff in the suit and petitioner in O.P.No. 578 of 2001. For convenience, parties are referred to as arrayed in the suit.
5. Sri T. Niranjan Reddy, the learned Counsel appearing for the appellant, vehemently contends that the trial Court was in serious error in allowing the petition filed under Order XXXIII Rule 1 C.P.C. for the reasons; firstly that Sub-section (3) of Section 96 C.P.C., postulates that no appeal shall lie from a decree passed by the Court with the consent of parties. Hence, it s contended by the learned Counsel appearing for the appellant that since it is the specific averment of the plaintiff that the earlier decree, which was obtained by compromise, was by way of adopting fraudulent methods, but still since the said decree was by way of consent, such a decree is hit by Sub-section (3) of Section 96 C.P.C., and secondly that Order XXIII Rule 3-A of C.P.C. barred the filing of the suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
6. For better appreciation and ready reference, Order XXIII Rule 3-A C.P.C., is extracted below:
“No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”
7. From the above, it is clear that a suit shall not be instituted merely on the ground that the compromise, which is the basis for the decree, is unlawful.
8. In this regard, a further reference has to be made to Order XXXIII, Rule 5 of C.P.C., which deals with rejection of application seeking permission to sue as an indigent person, which is extracted to the extent relevant as under:
“(a) …
(b) …
(c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person;
Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or
(d) where his allegations do not show a cause of action, or
(e) …
(f) …
(g) … ”
9. A conjoint reading of Section 96 (3) read with Order XXIII Rule 3-A and Order XXXIII Rule 5 C.P.C., would show that in order to make an application under Order XXXIII Rule 1 C.P.C., the important condition to be satisfied is that there must be a cause of action, before levelling an allegation like that compromise decree was obtained by fraud, as a condition precedent among the other conditions, which implies the consequential question of jurisdiction, since the aspects of ’cause of action’ and ‘jurisdiction’ are inter-twined.
10. It is not in dispute that in the instant case, it appears, there was a decree sought to be cancelled which was obtained in a Court of Orissa State by way of an alleged compromise. Therefore, since the plaintiff is residing in the State of Andhra Pradesh, she instituted the present suit on the ground that a consent decree was obtained by practising fraudulent method, and also for maintenance.
11. The settled principle of law is that the aspect of jurisdiction is a mixed question of fact and law invariably goes to the very root of the matter.
12. No doubt, while deciding the question as to whether the plaintiff can be declared as an indigent person or not, the conditions referred to above, in normal course, are to be addressed first. But, yet another important aspect borne out of the record is that the O.P. filed under Order XXXIII, Rule 1 of C.P.C. had already been ordered without going into the aspect of jurisdiction. As already noticed, the aspect of jurisdiction is a mixed question of fact and law to be normally decided in the suit only.
13. In this context, it is necessary to refer to Rule 2 of Order XIV C.P.C., which reads as under:
“2. Court to pronounce judgment on all issues.-
(1) 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.
(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 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 on that issue”.
14. It is obvious from the above that the Court shall pass judgments addressing all the issues. But, Clauses (a) and (b) of Sub-rule (2) of Order XIV, Rule 2 C.P.C. are in the nature of exceptions to the general principle laid down under Sub-rule (1) of Order XIV, Rule 2 C.P.C. If we closely understood these submissions made by the learned Counsel appearing for the appellant, it appears that the submissions of the learned Counsel would fall both under the category of Clauses (a) and (b) of Sub-rule (2) of Order XIV, Rule 2 C.P.C.
15. Therefore, instead of making extensive enquiry, even at the stage of enquiry under Order XXXIII, Rules 1 and 5 C.P.C., we are of the considered view that it is rather expedient to direct the Court below to decide the question of jurisdiction of the Court at the threshold invoking the jurisdiction conferred on the Court below under Clauses (a) and (b) of Sub-rule (2) of Order XIV, Rule 2 C.P.C.
16. No doubt, there appears to be some force in the submissions made by the learned Counsel appearing for the appellant. But, if the said submissions are to be accepted, the corollary would be remittance of the matter back to the Court below and a detailed enquiry has to be necessarily conducted by it on all aspects, primarily on the aspect of jurisdiction. This procedure, if adopted, would only lead to stretching elongation of the litigation instead of considerably slashing down out of two aspects i.e. the aspect under Order XXXIII, Rule 1 C.P.C. and maintainability of the suit vis-a-vis the cause of action. The first aspect had already been decided by the Court below in favour of the plaintiff-respondent.
17. Therefore, we are of the view that it is proper and necessary to direct the Court below to frame a preliminary issue in the suit regarding the jurisdiction and decide the same as contemplated under Clauses (a) and (b) of Sub-rule (2) of Order XIV, Rule 2C.P.C., as expeditiously as possible, in any event, not beyond four months from the date of receipt of a copy of the order. Needless to hope that both parties would co-operate with Court.
18. The Civil Miscellaneous Appeal is disposed of accordingly. No costs.