1. These are three connected revisions against the orders of civil Judge, Ratangarh, and arise in the following circumstances:
2. Three suits were brought by Munnalal & other plaintiffs against three different sets of defen- dants in the court of Civil Judge, Ratangarh. In all the three suits, the defendants raised a question whether the trial Court had territorial jurisdiction to decide the suits and an issue was framed on that point. The defendants in all those cases asked the trial Court to decide the issue of jurisdiction first. The trial Court rejected this contention mainly on the ground that the issue of jurisdiction was also connected with another issue relating to execution of the document which was the basis of the suit.
3. The defendants in the three suits have come to this Court in revision, and it is contended on their behalf that the trial Court acted with illegality or material irregularity in not allowing their prayer for deciding the issue of jurisdiction as a preliminary issue, and that this Court should order the trial Court to decide the issue of jurisdiction as a preliminary issue.
4. Learned counsel for the applicants rely in this connection on the observations in certain cases in which it has been said that it is desirable that issues of jurisdiction should be decided first. There are, at the same time, observations in numerous other cases in which High Courts have held that the trial Court should not decide a suit piecemeal, and that it is best that the whole suit should be decided at one time. We are of opinion that these observations as to the desirability of the course to be followed are not so important in a matter of this kind.
The question we have to see is whether the trial Court acted with illegality or material irregularity. It is only if we come to the conclusion that the trial Court acted will illegality or material irregularity that we can interfere with its discretion. Otherwise the trial Court should always be left with the discretion to try the suit as best as it can provided the trial is in accordance with the procedure in the Code of Civil Procedure.
5. The only provision in the Code to which learned counsel could point out, which compels a trial Court to decide certain issues first and thus gives a right to the party to insist that the trial Court must decide certain issues first, is to be found in Order XIV, Rule 2 which runs as follows:
'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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.'
Unless, therefore, the applicants can satisfy us that Order XIV, Rule 2 applies in terms to the situation inthese cases, they have no right to come to this Court in revision, and insist that this Court should Interfere in revision, and direct the trial Court to proceed with the trial of the suit in this manner or that.
6. What then is exactly the scope of Order XIV, Rule 2? It provides for disposal of certain issues as preliminary issues. But there are two conditions which, in our opinion, must be fulfilled before it can be applied. The first condition is that the issue must be an issue of law, i.e. it should not be an issue either of fact or mixed fact and law, but an Issue of law pure and simple. The second condition is that the Court should be of opinion that the case or any part thereof may be disposed of on that issue. This does not, in our opinion mean that the issue is of such a nature that its decision may result in the disposal of the suit.
What Order XIV, Rule 2 requires, in our opinion is that the Court should look at the issue of law, & if it is of opinion that prima facie the decision will go one way, namely, that the case or part of the case would come to an end, it should proceed to decide the issue as a preliminary issue. It seems to us useless to decide even an issue of law as preliminary issue if for example, it is clear to the Court prima facie that if it decides that issue, It will hold that the suit is not barred by limitation or res judicata.
It is only where the Court can prima facie see that the suit is, barred by limitation or by res judicata that it may proceed to try the issue as a preliminary issue and dispose it of.
7. The next question, which immediately arises, is whether issues of jurisdication are issues of law pure and simple. In this connection, we may refer to the observations of Beaumont C. J. in Sowkabai v. Tukojirao Holkar, AIR 1932 Bom, 128 (A). The learned Chief Justice was considering the scope of Rule 2 of Order XIV, and observed as follows:
'That Rule 2 seems to be intended to introduce the practice which used to be known in England before the passing of the Judicature Act, 1873, as 'demurrer'. That means that the defendant may say that, assuming the truth of all the allegations in the statement of claim nevertheless the statement of claim in point of law discloses no Cause of action, and therefore the suit should be dismissed.'
It is this kind of issue of law which is enjoined under Order XIV, Rule 2 to be decided as a preliminary issue.
8. This very matter was further considered in Shiv Bhagwan Moti Ram v Onkarmal Ishar Dass, AIR 1952 Bom 365 (B), and Chief Justice Chagla, if we may say so with respect, has put the matter very clearly so far as questions of jurisdiction are concerned. We may quote the following at p. 368:
'Now it is open to a Court to take the view that, even if the plaintiff were to establish all the facts alleged by him, the Court would have no jurisdiction. In that view of the matter, a preliminary issue on a demurrer will arise, and that would undoubtedly be an issue of law.
But there may be a case where an issue as to Jurisdiction would require leading of some evidence in which case an issue of jurisdiction would raise a mixed question of law and fact. Such an issue may be tried as a preliminary issue, or it may be tried as an issue along with other issues. This would depend upon whether the evidence with regard to jurisdiction could be separated from the evidence on other issues. Therefore, it would not be correct to say that in allcases an issue as to Jurisdiction is necessarily aa issue of law.'
9. If we may say so with respect, this is exactly the situation with an issue of jurisdiction. Where there is no dispute between the parties as to the facts, and the facts alleged in the plaint are accepted as correct by the defendant, and he still raises the question as to the Court's jurisdiction, the issue of jurisdiction so arising is an issue of law. But if the plaintiff makes an allegation that the Court has jurisdiction, say for example on the ground that the defendant was resident within the jurisdiction of the Court even though the cause of action arose elsewhere, and the defendant objects to the jurisdiction on the ground that he is not the resident within the jurisdiction, a question of jurisdiction certainly arises, but it is not a question of law pure and simple.
There is first to be a determination of a question of fact namely the residence of the defendant, and then only can it be decided whether the Court has territorial jurisdiction or not. In such a case the question of jurisdiction is not a question of law within the meaning of Order XIV, R 2, and the Court is not bound under that provision) to decide it as a preliminary issue on the request Of any of the parties.
Of course, this does not mean that the Court may not decide it as a preliminary issue if it feels that it can dispose of the suit by deciding that issue, i.e. where it feels that prima facie the chances are that it will hold that the Court had no jurisdiction. But generally speaking where mixed issues of law and fact arise in an issue relating to jurisdiction, it would, in our opinion, be not improper for the Court to say that it will decide the question of Jurisdiction also along with other issues in the case.
10. This is exactly what the trial Court has done in this case. In two of the cases there was an allegation that the trial Court had jurisdiction because the cause of action arose within its juri-diction, and also because the defendant was resident in that jurisdiction.
The defendant denied both these allegations. He said that the cause of action did not arise within the jurisdiction of the Court because he did not execute the pro-note at all. He also said that he was not resident within the jurisdiction of the Court. Now if such an issue of jurisdiction has to be decided as a preliminary issue, not only must the Court decide about the residence of the defendant, but also about the execution of the pro-note. This would show the absurdity of forcing a Court to decide the issue of jurisdiction as a preliminary issue.
As we have said before, the matter must be left to the discretion of the Court, and it will be for the Court to decide whether in a particular case it should decide the issue of jurisdiction as a preliminary issue. Of course, where the issue of jurisdiction is a pure issue of law in the sense in which we have already pointed out, the Court must act according to the provisions of Order XIV, Rule 2.
11. In the third case before us the allegation was mainly that the defendant was resident within the jurisdiction of the Court, and therefore the Court had jurisdiction. There was also some allegation about the cause of action. But even if there was no allegation about the cause of action, and the allegation was only on the question of residence, and that allegation was denied by the defendant, a mixed issue of law and fact would arise to which Order XIV, Rule 2 would not be applicable strictly.
In these circumstances, the discretion would always be in the trial Court to decide the issueof jurisdiction as a preliminary issue or not. As already remarked, the trial Court may decide it as a preliminary issue if it prima facie feels that the decision will be given in favour of the defendant. But it is not bound to do so and no party can insist that it must do so, and this Court will not interfere in revision against the exercise of descre-tion by the trial Court in these circumstances.
12. In view of what we have said above, thereis no reason for interference in these cases. Wehereby dismiss the revisions with costs to theplaintiffs opposite parties.