The provision under Order 14 Rule 2 C.P.C. is discretionary and not mandatory, allowing the trial Court to decide the issue of jurisdiction as a preliminary issue or with other issues.

JUDGMENT :

1. Heard Sri A.K. Goyal, learned counsel for the revisionist/ defendant and Sri Siddharth Srivastava, learned counsel for plaintiff/respondent no.1.

2. The plaintiff/respondent no.1 instituted a suit for cancellation of sale deed dated 30.03.2009 executed by defendant/respondent no.1 in favour of defendant/respondent no.3. The suit was instituted on the ground that the plaintiff/respondent no.1 is the owner of the property in dispute and sale deed has been illegally executed by the defendant/respondent no.1 in favour of defendant/respondent no.3.

3. In the suit, an application under Order 7 Rule 11 C.P.C. was filed by the revisionist/defendant no.1 contending inter-alia that the suit is barred as the sale deed has been executed under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SECURITISATION ACT, 2002') and a case for cancellation of sale deed is registered as Case No.67 of 2008 is pending before the Debt Recovery Tribunal.

4. The trial Court by order dated 01.09.2021 rejected the said application holding that the question whether the suit is barred is mixed question of fact and law, therefore, prima facie it appears that the power under Order 7 Rule 11 is not to be exercised in such a case.

5. After the pleadings have been exchanged, the trial Court framed as many as 12 issues. After framing of issues, the revisionist/defendant filed an application No.103Ga praying therein that the Issue Nos. 6, 7 & 10 of the suit may be decided as preliminary issues. The issues Nos. 6, 7 & 10 reads as under:-

^^6- D;k okn vko';d i{kdkjksa ds u cuk;s tkus ls nwf”kr gS\
7- D;k okn /kkjk 10 lhŒihŒlhŒ ds varxZr LVs gksus ;ksX; gS\
10- D;k bl U;k;ky; dks okn dh lquokbZ dk {ks=kf/kdkj izkIr gS\^^

6. The trial Court found that the necessary party has been impleaded by the defendant/respondent no.1 and the original suit Nos.539 of 2009 & 510 of 2009 have been clubbed. So far as the question of jurisdiction framed as Issue No.10 is concerned, it is a mixed question of fact and law and can be decided with other issues. The trial Court further recorded that the application has been filed to delay the proceeding as on the last four dates the defendant/revisionist has sought time to cross-examine PW1, and thereafter the said application 103Ga was filed.

7. Challenging the aforesaid order, learned counsel for the revisionist has contended that once the question of jurisdiction arises and suit is exclusively barred by Section 34 of the SECURITISATION ACT, 2002, it is incumbent upon the trial Court under Order 14 Rule 2 C.P.C. to decide the question of jurisdiction first so that the proceedings may not prolong unnecessarily and the revisionist may not suffer harassment.

8. It is contended that from the reading of Section 34 of the SECURITISATION ACT, 2002, it is evident that suit is exclusively barred and as no question of fact is involved and only question of jurisdiction is involved, therefore, the trial Court ought to have decided the Issue No.10 as preliminary issue. He submits that provision under Order 14 Rule 2 C.P.C. which provides for decision of issue on jurisdiction is mandatory and the Court below has to follow the said provision and decide the said issue first as preliminary issue.

9. In support of his argument, he has placed reliance in the case of Manager, Bettiah Estate Vs. Bhagwati Saran Singh and other, 1992 (2) AWC 1233 & Mrs. Shahnaz Husain and Other Vs. Mohd. Yunus & Other, 1993 (1) ACJ 216 & Smt. Subhash Bhalla and another Vs. Smt. Jai Devi and another, 2008 All. C.J.773.

10. Per contra, learned counsel for the plaintiff/respondent contends that almost on identical plea, an application under Order 7 Rule 11 C.P.C. was filed wherein it was alleged that as the sale deed has been executed under Section 13(2) of the SECURITISATION ACT, 2002, therefore, the suit is barred. He submits that while deciding the application under Order 7 Ru