Ramagya Tiwari v. Shib Kumar Sah

Shree Chandrashekhar, J.:— The petitioner is aggrieved of order dated 18.12.2010 passed in Money Suit No. 02 of 2007 by which his application, for framing a preliminary issue on jurisdiction, has been dismissed.

2. Without recording facts of the case in detail, suffice would be to record that after the Code of Civil Procedure Amendment Act, 1976, provision under Order XIV Rule 2(2) CPC for framing and deciding a preliminary question on an issue of law is no longer mandatory for the Court and a preliminary issue can be decided even at the time of final disposal of the suit. Expressions used in Order XIV Rule 2(2) CPC are, “if it thinks fit” and “where issues both of law and of fact arise in the same suit and, the Court is of opinion”. These expressions abundantly make it clear that Rule 2(2) of Order XIV CPC is discretionary. Moreover, an issue of jurisdiction is also a mixed question of law and fact which can be conclusively decided only after the parties have led evidence.

3. In view of the express language of Order XIV Rule 2(2) CPC, I find no infirmity in the impugned order dated 18.12.2010 and accordingly, the writ petition is dismissed.