1. Ajay Kumar respondent-herein has filed petition for dissolution of marriage against his wife Shrimati Aruna Kumari petitioner-herein which is pending disposal in the court of District Judge, Kathua. The said petition has bean resisted by the petitioner-herein on various grounds. The trial court on November 15, 1988 framed the following issues: -

1. Whether the respondent has treated the petitioner with cruelty? O. P. P.

2. Whether this court has no jurisdiction to this petition? O. P. R.

3. Relief. Issue No. 5 was, however, recast as under: -

Whether the parties to the petition last resided at Kathua and this court as such has jurisdiction to try the petition? OPP

2. The parties were directed to furnish list of witnesses within 14 days and the respondent-herein was directed to lead evidence first. The petitioner-herein moved an application before the trial court on August 19, 1989 for treating issue of jurisdiction as preliminary to be decided first. The other side opposed to this prayer of the petitioner-herein and the learned District Judge Kathua vide his order dated August 19, 1989 rejected the application holding that the issue cannot be decided without taking evidence of the parties and as such it cannot be treated as preliminary issue. Aggrieved by this order the petitioner-herein has come up in Revision before this court.

3. I have heard learned counsel for the parties and perused the record before me. Mr. B. M. Gupta learned counsel appearing for the petitioner has argued that issue No. 2 framed in the case is regarding jurisdiction of the court to try the case and in view of provision contained in Order XIV Rule 2 Civil Procedure Code it is to be treated as preliminary issue and it is required to be disposed of as such. In support of his contention he has cited 1987 Current Law Journal, p. 1, 1988 Revenue Law Report p. 423: 1982 P. L. R. p. 192 and A. I. R. 1978 Madhya Pradesh p. 16. Mr. J. P. Singh ([learned counsel for the respondent, on the other hand, has contended that issue of jurisdiction framed in the case is a mixed question of law and fact which requires recording of evidence to be led by both the sides and as such it cannot be tried as a preliminary issue. In support of his contention he has referred to AIR 1979 Madhya Pradesh, p. 153; and 1988 (1) Current Civil Cases, p. 299; and 1967 K. L. J, p. 356.

Order XIV Rule 2 of Civil Procedure Code reads as under: -

"(2) 1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

2) 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 in an issue of law only, it may try that issue first if that issue relates to:

a) the jurisdiction of the court, or

b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

4. In 1987 Current Law Journal (supra) Delhi High Court has taken a view that even a mixed issue of fact and law but which pertains to the jurisdiction of the court to try the suit, would be covered by order XIV rule 2 (2). In the case in hand the court, however, held that once the issues are settled then the court would not be justified to order that one of the issues be tried as a preliminary-issue when the court had not treated any issue as preliminary at that time. In 1988 Revenue Law Reporter (supra) Punjab and Haryana High Court has held that failure of trial court to decide issue relating to jurisdiction of court as preliminary issue which requires no evidence is against the provisions of Order XIV Rule 2 Civil Procedure Code. In 1982 P. L. R. (supra) the Punjab and Haryana High Court observed that question regarding territorial jurisdiction of court shoul

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