1. this is a revision filed by the plaintiff against the order passed in I.A. No. 94 of 1974 in O.S. No. 237 of 1971 by the Subordinate Judge, Rajamundry, whereby he wanted to take up a preliminary issue. The learned counsel for the petitioner contended that the lower Court could not have heard the preliminary issue first as it requires some evidence to be recorded. To understand the above argument, it is necessary to state the brief facts of the case.
2. The plaintiff is a registered firm and deals in fancy goods at Rajamundry. The defendant is the manufacturer of sewing threads etc. The plaintiff was appointed as a Distributor for the East and West Godavari Districts excluding Tuni for the supply of the defendant's sewing threads under a letter dated 20th January, 1965, for which there was an oral agreement at Rajamundry dated 15-1-1965. The plaintiff is entitled to a commission of 5% on all the orders received executed and completed. The said agreement was for three years but subject to renewal. The agreement was not renewed. Even then, the plaintiff continued to work as a Distributor till 15-8-1968 under the oral terms with the defendant's representative at Rajamundry. Thus, the agreement dated 15-1-1965 was no longer in force. The plaintiff opened a Khata in the defendant's name and continued the same till 15-8-1968. An amount of Rs. 14,550.51ps was found due by 6-9-1968 from the defendant. Thus the defendant is liable to pay the said amount. Subsequent to 15-8-1968 there were no further dealings. The amount is payable at Rajamundry. The account is mutual, open and current. Deepavali is the accounting year. The plaintiff issued a registered notice through his advocate on 29-4-1971. The defendant acknowledged the same and got issued a false and frivolous reply notice with untrue and untenable allegations. Such allegations were invented for the purpose of the defence. The defendant, in the reply notice, also stated that he shall send the amount of Rs. 6,586.93 Ps in full satisfaction either to the plaintiff or to its advocate and thus the amount is also payable at Rajamundry even otherwise. In para 12 of the plaint, it was stated that the cause of action for the suit arose on 15-1-1965 the date on which the contract was concluded at Rajamundry, on 20-1-1965, the date on which the letter was executed, on 20-1-1968, the date on which the agreement ceased to be in force, on 15-1-1966, the date on which the khata was opened in the plaintiff's account in the name of the defendant, on 21-1-1968 till 15-8-1968, the date on which the plaintiff continued to work as such Distributor, on 15-1-1965, the date on which the plaintiff paid the advance amount at Rajamundry by way of cheque, on 29-3-1971, the date on which the plaintiff issued a registered notice and on 7-4-1971, the date on which the defendant sent a false and frivolous reply notice. The subsequent oral agreement took place at Rajamundry within the jurisdiction of the Court. It is, therefore, stated that the Rajamundry Court has got jurisdiction. The written statement filed by the defendant is not supplied with material papers; but the affidavit filed by the defendant is supplied. In the affidavit filed in I.A. No. 94/74, it is stated in para 3 that the Court has no jurisdiction to entertain the suit since there was an express condition in the agreement dated 20-1-1965 entered into between the plaintiff and the defendant, by which all the disputes between the parties were subject to jurisdiction of Udamalpet. The plaintiff, in order to get over the agreement came to an end after 20th January 1968 and there was subsequent oral understanding between the plaintiff and the defendant's representative at Rajamundry and, therefore, the agreement dated 20-1-1965 was no longer in force. There was a continuous correspondence between the plaintiff and defendant ever since the khata was opened in January 1965 till the business transaction affair was stopped. The defendant called upon the plaintiff to produce the entire correspondence that was exchanged between them from the inception to the date of giving the notice but the plaintiff has not produced the same. The defendant has in his possession letters addressed by the plaintiff and the office copes of the correspondence, which he addressed to plaintiff. In para 6 of the affidavit, it was specifically stated that a plea was taken in the written statement that the Court at Rajamundry has no jurisdiction to entertain the suit and on issue was also framed by the Court since the question of jurisdiction goes to the root of the case and is a question of law, which can be decide on the documentary evidence to avoid the cumbersome procedure involved in going through the trial of the suit on the other issues. Therefore, the defendant filed the interlocutory application that it will be just and convenient to decide the question of jurisdiction as a preliminary issue.
The lower court passed a very short order which is as under :--
'Counter file. Heard. It will be heard as a preliminary issue. Petition allowed.'
3. The revision is filed against this order.
4. The learned counsel for the revision petitioner contended that the issue of jurisdiction cannot be decided without any evidence. Therefore, the question for consideration would not be purely one of law but it becomes a mixed question of law and fact and hence it cannot be treated as a pure question of law and decided as a preliminary issue. The learned counsel for the respondent on the other hand, contended that there is no case decided by the lower Court. The lower Court has only chosen to state that it will decide the question of jurisdiction as a preliminary issue for which an issue is already framed. When no right or a party of the case is decided by the lower court, it cannot be treated as a case decided and therefore the provisions of section 115 C.P.C. cannot be attracted. The learned counsel for revision petitioner relied upon Sayyad Shad Abdul Latif Mohideen Khadiri Sujjatha Shibathullahi Sahib v. Mohammad Labbai : AIR1950Mad596 Sri Sarveswaraswamy Vari Temple at Kakaramilli Represented by the Trustee v. Rudrapaka Veerabhadrayya, (1961) 1 Andh WR 250), M/s. Basti Ram Roop Chand v. M/s. Radhey Shyam Gulab Chand (AIR 1973 All 499), Major S.S. Khanna v. Brig. F. J. Dillon : 4SCR409 and Lala Dhanpat Rai v. Sri Prem Sunder Bhargava : AIR1962All572 In Sri Sarveswaraswamy Vari Temple at Kakaramilli Represented by its Trustees v. Rudranaka Veerabhadrayya, (1961) 1 Andh WR 250) the case came to the High Court in appeal. As many as twenty issues were framed. But issues 3 and 4 were taken up for trial and for consideration by the learned Subordinate Judge as preliminary issues. Those issues were :
'3. Whether this Court has got jurisdiction to entertain the suit?
4. Whether the jurisdiction is barred by Section 87 and 93 of the Hindu Religious and Charitable Endowment Act?'
Only those issues were taken up for trial and for consideration by the learned Subordinate Judge. The subordinate Judge held that it had no jurisdiction to try the suit as it was barred by Sections 93 and 88 of the Madras Act XIX of 1951 and hence he dismissed the suit. Therefore, an appeal was filed. The High Court, on a consideration found that the decision of the Subordinate Judge on those issues was not sustainable and the appeal was allowed and the suit was remanded for disposal on the remaining issues. The High Court was pleased to observe that 'We must, however observe that it is most undesirable that Courts against whose judgments appeals eventually lie to the High Court should dismiss the suits on preliminary issues'. In Mohammed Sulaiman v. Birendia Chandra Singh (1923) 44 Mad LJ 388 = 50 Ind Andhra Pradesh 247 = (AIR 1922 C 405) the Privy Council, following an earlier decision of Lord Justice Turner in Bannerjee v. Puddomoney Dobsee (1863) 10 MIA 476) held that by forbearing from deciding all issues, the Courts below not infrequently oblige the Court of Appeal to remand the case which otherwise might finally be decided, involving serious inconvenience to the parties. The same view has again been reiterated in Jagannatha Rao Dani v. Rambharosa (1932) 64 Mad LJ 142 = 60 Ind App 49 = (AIR 1933 PC 33) by the Privy Council. 'It was further pointed out by Viswanatha Sastri, J., in Shibarhullahi Saheb v. Mohammed Labbai, (1950) 1 Mad LJ 657 = (AIR 1950 Mad 596) that apart from the high authority of the decided cases, a specific circular was issued by the High Court that as a general rule the Subordinate Courts, as far as possible, receive the evidence adduced and decide all the issues in order to avoid piece-meal trial and a protracted litigation in the shape of an appeal and remand in case the decision of the Subordinate Court on the preliminary issue is not upheld by the appellate Court. This is the most salutary procedure and must be generally followed. The learned counsel, pointing out the said observations contends that when issues have been framed, the lower court must be directed to record evidence on all the issues and decide the matter Sayyed Shah Abdul Latif Mohideen Khadiri Sujatha Shibathullahi Sahib v. Mohammad Labbai (AIR 1950 Mad 596) referred to by the petitioner has already been referred to in Sri Sarveshwaraswamy Vari Temple at Kakaramilli Represented by its Trustees v. Rudrapaka Veerabhadrayya (1961) 1 Andh WR 250) which point out that in appellate cases. Courts should, as far as possible decide all issues to avoid piece meal trial and protracted litigation. The learned counsel for the petitioner relied upon Basti Ram Roop Chand v. Radhey Shyam Gulab Chand : AIR1973All499 in which it is stated that under O. 14, R. 2, the court is bound to try as preliminary issue the question of law on which the entire suit may be disposed of. But where the question is not purely of law or it is a mixed question of law and fact, the court has no jurisdiction to try the issue as a preliminary issue. In that case, the defendants filed a written statement objecting to the jurisdiction of the Court and filed an application to try the said issue as a preliminary issue. The trial Court found that it is a suit for recovery of damages on account of breach of contract. The question of jurisdiction was a mixed question of law and fact and hence the trial Court did not consider it expedient to try the issue as a preliminary issue and consequently dismissed the application. A revision was filed before the District Judge. The learned District Judge declined to interfere with the said order holding that there was no illegality in the order passed by the lower Court. There, the question was; whether the gods were to be delivered and price was to be paid in pursuance of the contract at Kanpur or not. When a revision was filed in the High Court, the High Court also declined to interfere with the said order and dismissed the revision petition holding that the question of jurisdiction is a mixed question of law and fact in that case. He also relied upon S.S. Khanna v. Brig. F.J. Dillon, : 4SCR409 for the proposition that the Civil Procedure Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. It was held that normally all the issues in a suit should be tried by the Court; not to do, especially when the decision on issues even of law depending upon the decision of issues of fact would result in a lop-sided trial of the suit.' In the above Supreme Court case, the lower Court held that a suit was not maintainable. When a revision was filed in the High Court, the High Court was pleased to hold that the trial Court erred in holding that the trial Court erred in holding that the suit was not maintainable. The main question that arose in the Supreme Court decision was ; Whether the provisions of Section 115, C.P.C. could be attracted and the High Court could interfere in the matter when the preliminary issue was decided by the trial Court? The Supreme Court was pleased to hold that it is a part of the suit is decided, it would be deemed that a case is decided and taking the suit was not maintainable as it affects the rights of the parties and therefore, the High Court was justified in interfering in the said order by entertaining a revision. It interfered in the said order as the lower Court acted with material irregularity and illegality in the exercise of its jurisdiction. Justice Hidayatullah delivered a separate judgment and discussed the scope of the provisions of Section 115 C.P.C. and his Lordships was pleased to hold that it amounts to a case decided and that when the lower Court was wrong in holding that a suit was not maintainable it could not have kept the suit pending and ought to have dismissed it and allowed the party to go in appeal and thus the order involved clearly a question of jurisdiction and it is revisable and the High Court was within its rights in correcting it by exercise of its owners under Section 115 C.P.C. Thus, relying upon the above decision, the learned counsel for the petitioner contended that as it is mainly a mixed question of fact and law involved in this preliminary issue, the lower Court had no jurisdiction to try it as a preliminary issue. The learned counsel for the respondent relied upon Major S.S. Khanna v. Brig. F.J. Dillon : 4SCR409 for the proposition that if the lower court decided to take up the issue as a preliminary issue, that does not amount to a case decided and the provisions of Section 115 C.P.C. could not be attracted. In S.S. Khanna v. Brig. F.J. Dillon : 4SCR409 , it is clearly laid down what is a case decided. It is stated that when an order is passed in a case or part of the suit, it amounts to a case decided. But in the instant case, no part of the suit can be said to have been decided when the lower Court held that the issue should be tried as a preliminary issue. It in no way affects the rights of the parties. Therefore, when this is not a case decided, the provisions of Section 115, C.P.C. cannot be invoked. There is sufficient strength in this argument. It is evident that the lower Court has not decided any of the rights of the parties except to hold that the preliminary ice with regard to jurisdiction will be taken up first. The decision in M/s. Bastiram Roop Chand v. M/s. Radhey Shyam Gulab Chand : AIR1973All499 supports the contention raised by the respondent. It may be stated here that the question raised here is that the Court at Rajamundry has no jurisdiction and that under the agreement the Court at Udamalpeta has jurisdiction to entertain the suit. That is, the parties have agreed to whatever may be their disputes for the settlement, over all those disputes, the Court at Udamalpeta will have jurisdiction. If the lower Court finds that on the basis of the agreement between the parties, the court at Udamalpeta has jurisdiction and the court at Rajamundry has no jurisdiction, it will simply return the plaint and will not try the suit. When such is the nature of the case, this case has to be distinguished with other cases where the preliminary issues are to be tried in which the question of returning the plaint may not be involved. When the question of returning the plaint is involved, it is better, having regard to the territorial jurisdiction that the said question is decided first. The learned counsel for the respondent relied upon Lala Dhanpat Rai v. Sri Prem Sunder Bhargava : AIR1962All572 . In that case an objection to the territorial jurisdiction was raised. Issues were framed; but it was stated that the preliminary issue would be decided after hearing the entire suit but at a later stage the preliminary issue was taken upon and the learned Civil Judge there, after going into the evidence of the parties, found that he had no jurisdiction to entertain the suit and to be ordered the return of the plaint for presentation to the proper court. Against that, an appeal was filed under Order 42, Rule 1, C.P.C. the point raised in the High Court was that when the Court finds that it had no jurisdiction, it ought to have dismissed the suit should not return the plaint to be presented to a proper Court. The Allahabad High Court was pleased to hold that the provision of returning the plaint has been made under Order 7, Rule 10 (1) of the Civil P.C. It gives a discretion to return the plaint at any stage of the suit for the presentation to the proper Court. If further held that 'The law does not require the Court to dismiss the suit on the plea of want of jurisdiction. It is only in cases where the plea of jurisdiction has been contested and the evidence of the parties has already been recorded on the merits of the case that the order of dismissal of the suit for want of jurisdiction has been upheld by the different High Courts. The learned counsel could not cite a single case in which the order of the return of plaint passed after hearing the preliminary issue of jurisdiction was held to be bad by any High Court. The cases cited all relate to those type of cases in which the Court after recording the evidence of the parties on all the issues came to the conclusion that it had no jurisdiction and then dismissed the suit. Such order of dismissal passed by the Court was fund to be justified. In the instant case the plaint was ordered to be returned after hearing the preliminary point of jurisdiction raised on behalf of the defendant. This case was quite distinct from the facts f the case cited by the learned counsel.' Thus the Court was of the view that when a preliminary point is raised in a case which affects the very entertainment or maintainability of the suit, it is not always proper to pass an order after hearing the preliminary point at the time of final hearing of the sit. Such a point should ordinarily be decided at an early stage. In the instant case, the question of entertainment or maintainability of the suit in Rajamundry Court is involved and, therefore, it is contended that it is proper that this issue is decided first. The learned counsel for the respondent also relied upon Narain Glass Works v. Beni Prasad (AIR 1951 Ajmer 57 (1) ). In the Ajmer case, the lower court refused to decide the preliminary issue. The question there was whether the suit was cognisable by the Civil Court at Ajmer or by the Civil Court at Agra. When the trial court refused to decide this issue as a preliminary one, the High Court was pleased to hold that this was certainly an issue of law going to the very root of the case. It further held that the plaintiff obviously for reasons best known to him, has suppressed the agreement. There, the carbon-duplicate of the agreement has been produced by the defendant, which was not specifically denied by the plaintiff. Keeping those facts in view Atma Charan, J., was pleased to allow the revision and direct the lower court to decide the preliminary issue first. It was further held that an independent issue and the evidence of such issue can be conveniently separated from the rest of the evidence and the finding on that issue may not render the trial of the other issues unnecessary. The above observations made in Sowkabai v. Tukoli Rao (AIR 1932 Bom 128) relied in the Ajmer case clinch the issue that when this issue could be separated and the evidence could be recorded in that issue where the question of return of the plaint would be involved, it is always safe to decide the same and this would save unnecessary expenditure and waste of time on the side of the parties in case the finding on the issue is against the plaintiff. This clearly supports the case of the respondent-defendant. In this instant case, the defendant has clearly stated that he has in his possession all the correspondence which is sufficient to decide the question of jurisdiction. When this is the case, I think, the lower Court was justified in holding that it will take up this issue as a preliminary issue and decide it. For the above discussion, I do not think that there are any merits in this revision petition. This revision is accordingly dismissed with costs.
5. Revision petition dismissed.