Jurisdictional issues in civil suits involving mixed questions of law and fact cannot be decided as preliminary issues before considering all other issues framed by the court, as mandated by procedural rules.

Sandeep Sharma, J.

1. Instant petition filed under Art. 227 of the Constitution of India, lays challenge to order dated 16.5.2023 passed by learned Civil Judge, Court No.5, Shimla, Himachal Pradesh in Civil Suit No. 58 of 2022 titled as Govind Singh Kanwar and others v. Ranjit Singh, whereby learned trial Court, after directing the petitioners/plaintiffs (hereinafter, ‘plaintiffs’) to tender evidence by way of affidavit, acceded to the request of the respondents/defendants (hereinafter, ‘defendants’), to lead evidence qua issue No. 8, prior to leading evidence on other issues.

2. For having a bird’s eye view of the matter, facts, relevant for the adjudication of the case at hand are that the plaintiffs filed a civil suit for declaration under S.34 of the SPECIFIC RELIEF ACT , declaring the gift deed No. 198 of 2007, dated 8.2.2007 registered with Sub Registrar (Rural) Shimla, executed by defendant No.1 in favour of defendant No.3 qua 150/3467 share in specific Khasra No. 44, to be not binding upon the right, title or interest of the plaintiffs, for the reason that the gift deed of specific Khasra No. 44 is not legally permissible out of joint holding/Khewat, wherein there are total 17 Khasra numbers and said Khasra No.44 stood allotted to the plaintiffs in a partition got conducted by the plaintiffs and defendants Nos. 1 and 2 through their common mediators. Apart from above, plaintiffs also prayed for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiffs over the land mentioned in Schedule I of the plaint.

1. Aforesaid suit came to be resisted on behalf of defendants, by way of filing detailed written statement. On the basis of pleadings adduced on record by the parties to the lis, learned trial Court, vide order dated 29.11.2022, framed as many as ten issues, as is evident from copies of zimni orders (Annexure P-2 colly. Learned trial Court permitted both the parties to furnish list of witnesses within fifteen days. Learned trial Court also directed the plaintiffs to file PF and Diet Money within seven days, failing which entire evidence was ordered to be produced on self-responsibility. Again on 20.1.2023 and 29.8.2023, time was granted to the plaintiffs to take steps for summoning plaintiffs’ witnesses. On 16.5.2023, learned counsel for the plaintiffs supplied copies of the evidence by way of affidavits of the witnesses to be examined by them, to the defendants and sought time from the learned trial Court for tendering affidavits. However, at that stage, learned counsel for defendants Nos. 1 to 3 submitted before learned trial Court that since issue of jurisdiction as raised by the contesting defendants in their pleadings and qua which issue No.8 stands framed, defendants be permitted to lead evidence qua issue No.8 prior to leading evidence on other issues, as the preliminary issue needs to be decided at the first instance. Learned trial Court below vide aforesaid order allowed the prayer made on behalf of the aforesaid defendants and permitted them to lead evidence on issue No.8 on 23.6.2023. However, on 23.6.2023, matter was adjourned enabling defendants to take steps for adducing defendants’ witnesses qua issue No. 8. In the aforesaid background, plaintiffs have approached this Court, in the instant proceedings, praying therein to set aside order dated 16.5.2023, inasmuch as learned trial Court permitted the defendants to lead evidence at the first instance qua issue No.8, being a preliminary issue.

2. I have heard learned counsel for the pa