PRAKASH KRISHNA, J.

( 1 ) COMMON questions of law and facts are involved in all these revisions and they are heard together and are being disposed of by a common judgment. All these revisions arise out of similar kind of orders passed by the Motor accidents Claims Tribunal. Therefore, to appreciate the controversy involved in the present case the facts of Civil Revision no. 83 of 2001 are referred.

( 2 ) CLAIM Petition No. 126 of 1997 was filed by Ram Babu under sections 166 and 140 of Motor Vehicles Act, 1988 claiming damages for the injuries suffered by him in a motor accident dated 4. 3. 1997 at about 8 p. m. , in village Kusahari near Sagar Hotel, kanpur-Lucknow Road, District Unnao, while he was travelling from Barabanki to kanpur on the pleas, inter alia, that the driver of bus No. UP 030-8281 in which the claimant was a valid passenger stopped the bus near a hotel for a break. A dispute arose in between the driver and the owner of the hotel and there was marpeet with the hotel personnel. The conductor asked the passengers to board the bus. The driver started the bus and hotel owner and its persons threw some inflammable goods on the driver through the window and as soon as the bus started it caught fire. The driver instead of stopping bus to save himself negligently and rashly speeded up the bus and the fire spread in the bus with the result that the claimant and other passengers received injuries. Number of passengers received burnt injuries and were got admitted in a government hospital and some of them were later on transferred to Lala lajpat Rai Hospital.

( 3 ) IN the claim application after the exchange of pleadings issues were struck. Issue No. 4 was treated as a preliminary issue which reads as follows:

"kya vertman case me dhara 147/307/435/504 bhartiya Danda Sanhita me darj hone ke karan kshti-purti kee yachika prastut nahi ho sakti ha. Jiske parinamswaroop is nyalaya ko kshetradhikar nahi ha. Yadi ho to uska prabhav. "

( 4 ) THE Tribunal heard the arguments on the aforesaid preliminary issue and by the order under revision found that the said issue cannot be decided as a preliminary issue as it is a mixed question of fact and law. Tribunal held that the said issue will be decided at the time of final disposal of the claim petition itself. Feeling aggrieved against the aforesaid order the present revisions have been filed at the instance of the insurance company.

( 5 ) MR. Manish Goyal, learned counsel for the applicant, in support of the revision submitted that the Tribunal has failed to exercise jurisdiction vested in it by law by refusing to decide the aforesaid issue as a preliminary issue. Elaborating the argument, it was submitted that Tribunal has not recorded any finding as to what facts are in dispute and submitted that it was open for the Tribunal to have evidence recorded on the above issue first and then to decide the same as a preliminary issue.

( 6 ) PER contra, the learned counsel for the claimant opposite party submitted that the Tribunal has not committed any jurisdictional error in refusing to decide the aforesaid issue as a preliminary issue inasmuch as the decision of the above issue necessarily requires recording of evidence. The said issue, according to him cannot be decided in isolation without recording the necessary findings of fact. Reliance has been placed by him upon a judgment of this court in case of Managing Director, unitech Ltd. v. Motor Accidents Claims tribunal, 2001 ACJ 1327 (Allahabad ).

( 7 ) STRONG reliance was placed by Mr. Goyal on a judgment of Apex Court in the case of Abdul Rahman v. Prasony Bai, AIR 2003 SC 718, wherein in para 21 it has been held that for the purposes of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed and the maintainability of the suit can be adjudicated upon a preliminary issue. The issues relating to res judicata and constructive res

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