Shiv Dayal, C.J.
1. The learned single Judge has referred the following question for our opinion:
'Whether an issue relating to jurisdiction of the trial Court which requires the taking of some evidence, has to be decided as a preliminary issue or not.'
2. It appears from the order of reference that the learned single Judge found some conflict between two single Bench decisions in Balchand v. Basantidevi, 1972 Jab LJ 448 : (AIR 1972 Madh Pra 157) and Mohansingh v. Sampatbai, (Civil Revn. No 252 of 1974, decided on 12-11-1974) (Madh Pra), although in both these decisions a reference has been made to Major S.S. Khanna v. F.J. Dhillon (AIR 1964 SC 497).
3. The learned counsel for both the sides have placed before us several decisions of this Court and other High Courts and also an unreported decision of A.P. Sen, J. in Civil Revn. No. 524 of 1973 (Madh Pra), Gordhandas v. Lalsingh.
4. Having gone through all these decisions we find that there is a debate as to the jurisdiction of the trial Court to try the question of jurisdiction when that question cannot be decided without recording evidence on it; otherwise generally the Courts are agreed that the question of jurisdiction must be decided first. Now the requirement of evidence to be taken may arise in different situations, which may be categorised as follows:
(1) Pure questions of law, which are preliminary i. e. which would go to the root of the case and on their decision the suit may be disposed of;
(2) Mixed questions of law and fact, which are preliminary in nature and may result in the disposal of the suit;
(3) Pure questions of law, which may not be preliminary i. e. which may not dispose of the entire suit; and
(4) questions of laws which are mixed with facts, on which facts there are independent issues of fact to be tried.
5. Since the question of jurisdiction is one which goes to the root of the matter if it is not decided at the earliest opportunity, it may cause unnecessary expense and harassment to the parties. It is the requirement of the law that the question of jurisdiction must be decided first, as a preliminary issue. If, however, some evidence is to be recorded before the question of jurisdiction can be disposed of, that also the Court can do. But, where an independent issue of fact has to be determined, on which the question of jurisdiction depends so that the question of jurisdiction cannot be decided without such other independent issue of fact being decided, to record evidence on the question of jurisdiction will be to record evidence on that fact for which there is an independent issue. Such lopsided trial, their Lordships have held in S.S. Khanna v. F.J. Dillon (AIR 1964 SC 497) (supra) is not permissible. We are, therefore, of the opinion that the question of the first two categories should be decided as preliminary issues without proceeding with the trial of other issues. However, in the case of the third category, it is not necessary to decide the question of law as a preliminary issue because it will not dispose of the entire suit and therefore await the stage of the final decision of the suit. In the case of the fourth category, decision of the question has to be postponed and it cannot be tried as a preliminary issue. Such was the situation in Major S.S. Khanna v. Brig. F.J. Dhillon (AIR 1964 SC 497) (supra). The view that we take was taken by A.P. Sen, J. in Gordhandas v. Lalsingh (Civil Revision No. 524 of 1973) (Madh Pra), or Vishnu Saw Mills v. Vitthal Rao (1957 Jab LJ 243), Ramdas v. Navinchandra (1973 Jab LJ (SN) No. 59); Firm Ramrichpal v. Firm Mahaibir Trading Co. (1974 MPLJ (SN) 45); Dr. Krishnamurthy v. Smt. Bhagwanidevi (1967 MPLj (SN) No. 57); Santoshchandra v. Gyansundarbai (1970 Jab LJ 290: (AIR 1971 Madh Pra 1 (FB)); Balchand v. Basantidevi, 1972 Jab LJ 448: (AIR 1972 Madh Pra 157) in the order of reference of Tare, J. as he then was, Ramesharandas v. Motilal (1975 MP LJ 43), Reshamlal v. Anand Sarup (AIR 1974 Punj 97), Ghatmal v. Amaravati Dyeing Pvt. Ltd. (AIR 1976 Andh Pra 70) and Fazelhussein v. Yusufally Adamji (AIR 1955 Bom 55).
6. We may, however, make a particular reference to the decision in Dr. Krishnamurthi v. Smt. Bhagwanidevi (1967 MPLJ (SN) No. 57) (supra) decided by Pande, J. He has further referred to Rule 145 (2) of the rules and orders (Civil made by this court). In Fazlehussain v. Yusufally Adamji (AIR 1955 Bom 55) (supra) Mr. Justice J. C. Shah (as his Lordship then was) held thus (at page 57):
'In considering the preliminary issue the court must look to the averments in the plaint and consider any objections which the defendants may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of demurrer has always to be decided onthe allegations made in the plaint and not on the contentions that the defendants may raise. It is true that if the jurisdiction of the court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to the jurisdiction of the court is decided.'
This decision deserves great respect and we respectfully concur with what has been said therein.
7. We are aware of a decision by the Allahabad High Court in Estrela Batteries Ltd. v. Modi Industries Ltd. (AIR 1976 All 201). There it has been observed that
'where the question of jurisdiction of the court to entertain the suit involves mixed questions of law and fact, it cannot be decided as a preliminary issue, under Order 15, Rule 3, when there is no material on record to decide it'.
If, we may say with respect, having regard to the facts stated this principle laid down in the Allahabad case falls within the purview of the fourth of the categories enumerated above. If however, it was intended to be laid down that just because any evidence becomes necessary to be recorded, the determination of question of jurisdiction ceases to be a preliminary issue we respectfully beg to differ.
8. There was some argument before us whether when the trial court has decided not to dispose of the question of jurisdiction as a preliminary issue, this court can interfere in revision. In our opinion the point is concluded by their Lordships in Chaube Jagdishprasad v. Gangaprasad (AIR 1959 SC 492). Roshanlal Mehra v. Ishwardas (AIR 1962 SC 646), Pandurang Dhondi v. Maruti Hari (AIR 1966 SC 153) and S. Rama Iyer v. Sundaresa (AIR 1966 SC 1431). In Pandurang Dhondi v. Maruti Hari (supra) Gajendragadkar, C. J. has if we may say so with greater respect succinctly laid down the rule as follows:--
'While exercising its jurisdiction under Section 115 it is not competent to the High Court to correct errors of fact however gross they may be or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself.
That point of law may arise in proceedings instituted before the Subordinate Court which are related to thequestion of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of a court which tries the proceedings. A finding on this plea in favour of the party would oust the jurisdiction of the court and, so an erroneous decision on these pleas can be said to be concerned with the question of jurisdiction, which fall within the purview of Section 115 of the Code. But an erroneous decision of a question of law by the Subordinate Court which has no relation to the questions of jurisdiction of that court cannot be corrected by the High Court under Section 115.
9. The learned counsel for the non-petitioner endeavoured to tell us that having regard to the facts and circumstances of this case from which this revision arises, the question of jurisdiction cannot be decided as a preliminary issue. That in our opinion will be a question to be considered by the learned single Judge, who will deal with this particular case. We are merely called upon to express our opinion on the question referred to us.
10. Accordingly we answer the reference as in paragraphs 4 and 5 above.