An application to take out the jurisdictional issue as the preliminary issue is not maintainable if it is belated and legally cannot be entertained. The jurisdictional issue is a mixed question of law and fact which can be decided at the time of trial.

1. In these revision petitions, this court ordered notice of motion to the contesting respondent.

2. Heard Mr.T.Arulraj, learned counsel appearing for the petitioners and Mr .M.S.Krishan, learned counsel appearing for the contesting respondent.

3. As identical questionS have been raised, these two revision petitions are disposed by this common order.

4. It is fairly stated by the counsel on either side that the points that are raised for consideration are identical in both the revision petitions. For the purpose of appreciating the contention, it is not essential to set out the factual matrix in detail in both the revision petitions.

5. C.R.P. No. 3054 of 1998 has been filed challenging the fair and decretal order dated 9. 1998 made in I.A. No. 612 of 1998 in O.S. No. 222 of 1996 on the file of the Subordinate Judge, Uthagamandalam. Nilgiris District, whereby the court below rejected the application to take out the jurisdictional issue as the preliminary issue. Admittedly the suits have been instituted during the year 1990 and the written statement has been filed during the year 1991. The Interlocutory Application has been taken out on 14. 1998 after examination of witnesses. The application has been taken out to decide the jurisdictional issue as preliminary issue.

6. C.R.P. No. 3055 of 1998 has been filed challenging the fair and decretal order dated 9. 1998 made in I.A. No. 613 of 1998 in O.S. No. 17 of 1998 by which the request to decide the jurisdictional issue as a preliminary issue, had been rejected. This suit also came to be instituted in the year 1990 and the written statement has been filed in the year 1991. However the suit has been transferred to the file of the Sub-court, Uthagamandalam, to be tried jointly along with O.S. No. 222 of 1996. In this suit also the evidence has been recorded and at that stage, application has been filed.

7. Mr. T. Arulraj, learned counsel appearing for the petitioner took the court through the pleadings as well as the depositions of witnesses and contended that no part of cause of action had arisen within the jurisdiction of the court below, that the suit property is located at Bangalore, and the defendant is a permanent resident of Madras and therefore, the court below is bound to decide the jurisdictional issue as the preliminary issue. The court below had considered both the applications and held that the applications are not maintainable and dismissed as belated, besides devoid of merits. As regards of question of jurisdiction, it is to be pointed out that according to the plaint averments, the cause of action arose within the jurisdiction of the court below. Any question relating to jurisdictional issue should have been raised at the earliest opportunity. The issue relating to the jurisdiction of the court, when it is a mixed question of law and fact, there is difficulty to decide the issue as preliminary issue. If it is purely a question of law, the trial court could take out the application on the basis of the preliminary issue. In the present case, the plaint averments would show that the cause of action for the suit arose at Uthagamandalam and Coonoor, as the case may be, within the jurisdiction of the court below. It may be that the defendant is the resident of Madras and that the property with respect to which the agreement is sought to be enforced is at Bangalore. In the other suit, the plaintiff had sought for recovery of original documents, entrusted to the defendant, after cancellation of the power of attorney and declaration that the power of attorney had already been terminated as the plaintiff is the resident of Coonoor. According to the plaint averments, entire contact had been concluded at Coonoor and this aspect is disputed by the defendant-petitioner. This controversy has to be decided only on the basis of the evidence, as there is assertion and counter assertion in this respect.

8. Both the suits are of the year 1990 and in both the suits