The determination of jurisdiction under Section 75 of the Rajasthan Co-operative Societies Act, 1965, cannot be made as a preliminary issue without recording evidence to establish the capacities in which the money was advanced and borrowed.

1. - This revision is directed against the order of the Additional Munsif No. 2, Jodhpur, dated March 16, 1982, whereby issue No. 2 relating to jurisdiction, has been decided in favour of the plaintiff.

2. Issue No. 2 was to the effect that whether the Court has no jurisdiction to hear the suit in view of the provision contained in Section 75 of the Rajasthan Co-operative Societies Act, 1965. The learned Additional Munsif proceeded to decide the issue on the basis of the allegations made in the plaint.

3. Having heard the learned Counsel for the parties, I am of the opinion that this issue could not and should not have been decided as a preliminary issue without recording the evidence of the parties. As per the pleadings of the defendant No. 1 the money was advanced and was taken by him in different capacities. In what capacity the money was advanced and in what capacity the money was taken by the defendant are the questions of fact and without determining these questions of fact, the issue could not have been determined. These questions of fact require leading of evidence by both the parties. It is true that the plaintiff has come forward with the case that he advanced the money to the defendant No. 1 in his individual capacity and the defendant No. 1 took upon himself the entire liability of payment in his individual capacity and on that basis it can be said that Section 75 of the Rajasthan Co-operative Societies Act, 1965, is not attracted because of personal capacities of the parties, that is the plaintiff and the defendant No. 1, but the question of jurisdiction has to be decided on the basis of the pleas taken by the defendant and the defendant's pleas require evidence. Without recording the evidence of the parties, the capacities, in which the money was advanced and the money was borrowed cannot be determined. In this view of the matter it would be proper that the finding recorded on issue No. 2 may be set aside and the question of jurisdiction should be left open to be decided after recording the evidence of both the parties.

4. With the above observation, this revision petition is allowed and the finding on issue No. 2 is set aside and it is directed that the learned trial court shall decide the issue No. 2 after recording the evidence of the parties. The costs of this revision petition shall abide the decision of the suit.Revision allowed.

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