An issue relating to the jurisdiction of the court to entertain a suit, which involves mixed questions of law and facts, cannot be tried as a preliminary issue under Order 14, Rule 2 of the Civil Procedure Code.

D. P. MOHAPATRA, J.

( 1 ) THE point that arises for decision in this appeal is whether in the facts and circumstances of the case the issue relating to jurisdiction of the Court to entertain the suit in respect of defendant No. 4 should be tried as a preliminary issue. The question having been answered in the negative by the learned trial Judge, defendant No. 4 in the suit filed this appeal under Clause 10 of the Letters Patent of the Orissa High Court challenging the said order of the learned trial Judge.

( 2 ) ORIGINAL Suit No. 1 of 1987 was filed by the respondent No. 1 against the appellant and respondents 2 to 4 claiming damages and special damages for publishing certain articles allegedly containing scandalous and libellous matters imputing the plaintiff's moral character. The suit was initially filed in the court of the Subordinate Judge, Bhubaneswar which has transferred subsequently to this Court. It is now pending before Justice Shri K. P. Mohapatra for trial. In the suit one of the issues framed is to the effect "5. Has the Court jurisdiction to entertain the suit in respect of the defendant No. 4 ?". The appellant filed an application under Order 14, Rule 2, Civil Procedure Code (for short, 'the Code') to try this issue as a preliminary issue. The petition was rejected by the learned trial Judge by order dated 24-5-88. The appellant seeks to assail this order in this appeal filed under Clause 10 of the Letters Patent of the Orissa High Court.

( 3 ) SINCE the point is simple and the contesting respondent, i. e. , the plaintiff appeared through counsel at the stage of admission, with consent of the counsel for both parties we heard the case for final disposal and it is being disposed of by this order.

( 4 ) ON perusal of the impugned order, it appears that the learned trial Judge considering the pleading of the parties in the light of the provisions in Order 14, Rule 2 of the Code came to hold that the plaint in the suit read as a whole will show that the offending articles of the Illustrated Weekly of India though printed and published in Bombay were circulated in Bhubaneswar and were read not only by the plaintiff but also by others. ; the offending articles contain the record of interview of defendant No. 4 by defendant No. 3; these are facts alleged in the plaint and as defendant No. 4 specifically challenges that the Weekly was not circulated in Bhubaneswar, the plaintiff may adduce oral and documentary evidence so as to prove that circulation was effected at Bhubaneswar in order to give jurisdiction to the Court of the Subordinate Judge, Bhubaneswar to entertain and decide the suit; therefore the issue of territorial jurisdiction is not an issue of law simpliciter; it raises a mixed question of law and fact which cannot be decided as a preliminary issue according to the provisions of Order 14, Rule 2 of the Code. On these findings the learned Judge directed that issue No. 5 if it would at all arise on the pleadings of the defendants, without being heard piecemeal should be decided with the other issues framed in the suit. Incidentally the learned Judge has also discussed at some length the legal position regarding the court or courts in which a suit claiming damages for defamation and libel can be filed under section 19 of the Code and the meaning and import of the tern `publication. '

( 5 ) COMING to the core question in the case formulated earlier, the position is well settled that in a civil suit piecemeal trial of the issues should be avoided and attempt should be made to consider all the issues together as far as possible. This principle is embodied in sub-rule (1) of Rule 2 of Order 14 of the Code. Sub-rule (2) of the said Rule contains an exception 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 an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the court,