This revision petition under S.115 Civil P.C seeks setting aside of the judgement passed on April 4, 1979 by Shri R.N Jandai, Subordinate Judge. I Class, Delhi dismissing the petitioners' suit on the ground that it was not maintainable.
2. The petitioners had filed the suit for permanent injunction praying that the New Delhi Municipal Committee (respondent herein) be restrained from recovering the suit amount from them. Along with the suit, the petitioners had made an application for the grant of an ad interim injunction under O.39, Rr.4 and 2 of the Code. The said application was dismissed and, therefore, the disputed amount was deposited by the petitioners with the respondent.
3. After the filing of the written statement certain issues were framed on May 31. 1978. It is the admitted case of the parties before me that issue No. 3 was as follows :
“Has the suit become infructuous by payment of the tax due ?”
4. On an application made by the plaintiffs under O.6, R.17, Civil P. C., the plaintiffs were permitted to amend the suit to one for declaration and injunction. To this amended plaint, an amended written statement was filed wherein it was admitted that the suit amount had been recovered by the defendant from the plaintiffs during the pendency of the suit. The issue, quoted above, was directed to be treated as a preliminary issue by the trial Court and after arguments it has been decided against the petitioners/plaintiffs on the ground that after the payment by them of the amount in question, the suit for mere declaration and injunction has become infructuous and was not maintainable, The finding of the trial Court is that after the said payment a suit for recovery of that amount is only maintainable.
5. Mr. Bikramjit Nayyar, learned counsel for the respondent, has raised a preliminary objection to the maintainability of this revision petition. He submits that the suit having been dismissed by the impugned order, the plaintiffs/petitioners could challenge the same by filing an appeal against it. The revision petition is thus not competent in view of Sub-S. (2) of S.115 of the Code.
6. Mr. M.L Bhargava, learned counsel for the petitioners, however, urges that he is entitled to challenge the judgement of the trial Court on the ground that its decision on issue No. 3 is illegal and contrary to law resulting in failure of the exercise of the jurisdiction vested in the trial Court. The petitioners, according to him, are not obliged to challenge the consequential judgement and decree dismissing the suit. In support of his contention he has cited a Division Bench judgement of this court reported in Siri Krishan Bhardwaj…Petitioner v. Manohar Lal Gupta & Another…S, AIR 1977 Delhi 226, wherein it has been, inter alia, held that : “When a subsequent order, even if it be a decree, is a consequential order to an earlier order and the earlier order is set aside the latter order must also fall and directions to that effect have to be given. Therefore, if the impugned order is reversed or modified the consequential order or decree will also have to be modified or directions will have to De given that the same is of no effect.”
7. From the above decision it is clear that under the provisions of Section 115, Civil P.C a revision petition against such an order as is impugned is maintainable without attacking the consequential decree which decree would have to be reversed or modified if the order is revised. Mr. Nayyar's contention that the said Division Bench judgement of this Court refers only to a suit under Order XXXVII, Civil P. C., is, in my view, not correct. The law laid down in the said decision cannot be construed to relate only to suits filed under Order XXXVII, Civil P.C The revision is, therefore, maintainable.
8. There is another aspect urged by Mr. Bhargava which has to be borne in mind. In the amended Code of Civil Procedure under Order XIV, Rule 2, only two categories of issues can be decided as preliminary issue. Those issues of law relate to (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force. Apart from those issues, no other issues can be tried as preliminary issues by the Court. I am fortified in the view which I have taken by a judgement of the Punjab and Haryana High Court reported in Hardwari Lal v. Pohkar Mal, AIR 1978 Punj and Har 230.
9. The issue, which has been decided as a preliminary issue noticed earlier, does not fall in the category of the preliminary issues which are permissible to be tried as such under the provisions of Order XIV. The jurisdiction vested in the trial Court has not been properly exercised while deciding the said issue The order, deciding that issue, if allowed, would occasion a failure of justice and in any case cause irreparable injury to the petitioners.
10. I therefore, hold that the present petition is maintainable and the impugned order is revisable. As the learned trial Court has not properly exercised its jurisdiction in deciding the issue as preliminary issue. I set aside the order dated April 4, 1979. I further direct that the decree, if any dismissing the suit consequent to the order deciding the preliminary issue be also set aside.
11. The case is remanded to the lower Court for 25-2-1980 to be tried in accordance with law. There will be no order as to costs.
Case remanded.