A question of law, such as the maintainability of a suit, can be decided as a preliminary issue based on admitted facts, as per Order 14 Rule 2(2) CPC and relevant case law.

JUDGMENT

Manjari Nehru Kaul, J. - CM No.5286-CII of 2022

1. The instant application has been filed for impleading LR of the petitioner. The averments made in the application that the petitioner Gulzar Singh Monga has since expired on 04.10.2019, are duly supported by copy of the death certificate and sworn attested affidavit of the applicant.

2. Learned counsel for the non-applicant/respondents submits that he has no objection in case the prayer for impleading LR of the petitioner is allowed.

3. In the light of the same, the application is allowed and the lone legal heir detailed in para No.2 of the application is allowed to be impleaded as Legal Representative of the deceased petitioner.

4. However, it is made clear that the same shall be purely for the decision of the present matter and shall not be used for any collateral purpose.

5. Amended memo of parties is taken on record.

CR No.4337 of 2019

6. The petitioner-defendant is impugning the order dated 29.05.2019 (Annexure P-2) passed by the Additional Civil Judge (Sr. Divn.), Panchkula in civil suit titled as 'Kulbhushan Monga & another vs. Gulzar Singh Monga and another' whereby his prayer for deciding issue No.10 as preliminary issue in accordance with Order 14 Rule 2(2) CPC was declined.

7. Learned counsel appearing for the petitioner inter alia contends that the impugned order suffers from patent illegality and is contrary to the settled principles of law. He submits that the respondents/plaintiff had instituted a simplicitor suit for declaration qua ownership of the suit property. However, during the pendency of the suit in question, the authority constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as, 'the Act') passed an eviction order against the respondents. Learned counsel, has invited the attention of this Court to the orders dated 05.07.2016 (Annexure P-7) passed in LPA No.582 of 2016 by this Court and submitted that it stood noticed therein that possession of the suit property had been handed over to the petitioner and hence there was no manner of doubt that the respondents were no longer in possession of the same.

8. Learned counsel submits that in the above circumstances, a simplicitor suit for declaration without seeking consequential relief of possession would not be maintainable in view of the bar created by proviso to Section 34 of the Specific Relief Act. He submits that the trial Court, while passing the impugned order, failed to appreciate that the maintainability of the suit in question would thus be a pure question of law in view of the admitted position qua the dispossession of the respondents in due course of law. Learned counsel has thus, argued that issue No.10 should have been treated as a preliminary issue by the trial Court as the decision in the affirmative of this issue would have disposed of the entire case itself which was erroneously not done.

9. Learned counsel, still further submits that the decision upon the said issue would require no evidence at all except the order dated 05.07.2016 (Annexure P-7) passed by this Court which as it is, is admissible per-se. Furthermore, he contends that even the respondents in their reply to the application under Order 14 Rule 2(2) CPC moved by the petitioner, had not disputed, rather admitted to their dispossession, thus the judicial order dated 05.07.2016 coupled with the admission of the respondents in their reply would clarify that the suit of the respondents was clearly barred. It has also been urged that the decision of the application under Order VII Rule 11 CPC would not in any manner adversely affect the application moved by the petitioner under Order 14 Rule 2(2) CPC, as the scope of both these provisions of law was different. In support, learned counsel has placed reliance upon 'Davinder Lal Mehta vs. Dharmender Mehta & another' 2010 (7) RCR (Civil) 2436; 'Mohamed Yasin vs. Abdul Kalam & another' 1987 CivCC 80; 'S.G. Badrinath vs. V. Jagannath