Preliminary Issue
Querist :
Anonymous
(Querist) 29 March 2010
This query is : Resolved
1.Plaintiff filed suit for declaration of ownership and permanent injunction.
2.Issue of jurisdiction and other issues are framed.
3.Suit is fixed for evidence.
4.PLAINTIFF moved application for trial of issue of jurisdiction(pecuniary)as preliminary contending that junior division do not have jurisdiction.
5.Plaintiff contention is that defendant has filed document on record showing market value of suit land as 15 lakhs
6.Whether it can be tried as preliminary issue because as per order XIV all issues are to be decided together
7. Please give citations if any
adv. rajeev ( rajoo )
(Expert) 30 March 2010
When issue is on jurisdiction it can be heard as preliminary issue, because it touches the jurisdiction of the court. When the issue is reaised on the jusrisdction of the court it should be heard as preliminary issue, because court cannot try the suit without having the jurisdiction. To prove the jurisdiction.
It is wonder plaintiff himself has moved an application!. He has filed a suit and he is questioning the jurisdiction of the court. I think instead of defendant you have typed as plaintiff.
To prove this issue it is necessary to lead the evidence mere production of documents does not suffice the case of the party who has questioned the jurisdiction.
Raj Kumar Makkad
(Expert) 30 March 2010
Yes. It can be made a preliminary issue and can be decided prior to initiation of the trial of the case.
Querist :
Anonymous
(Querist) 30 March 2010
Let me make it clear that the application is moved by the PLAINTIFF. Second I would like your kind guidance as to under what provision the said issue can be tried as preliminary. As evidence has started all issues should be decided on merits.
Parveen Kr. Aggarwal
(Expert) 31 March 2010
Court can treat any issue as preliminary issue if decision thereof involves purely a question of law. In case of issues involving purely questions of facts and mixed questions of law and facts, evidence is to be necessarily adduced before their decision. But issues involving pure questions of law can be treated as preliminary issues and decided before other issues without any evidence.
Even a plaintiff can request a court to treat any issue as preliminary issue and decide it before the decision of other issues.
Order 14, Rule 2(2) of the Code of Civil Procedure, 1908:
"(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."
