1983 Supreme(MP) 565

U. N. Bhachawat and R. C. Shrivastava, JJ.
Naresh Saxena v. President Adarsh Nagrik Sahkari Bank
F. A. No. 6 of 1979 (G); Decided on 7-12-1983

Headnote:(1) Civil P.C., 1908 -- O. 8, R. 10, 14 R. 2 and O. 39 Rr. 1 and 2 -- suit dismissed alongwith application for temporary injunction -- order bad in law -- suit can only the dismissed after written statement is filed and preliminary issue about maintainability is framed.

        (2) Co-operative Societies Act, 1960 (M.P.) -- S. 82 -- objection about maintainability of suit -- should be raised in written statement.

        This is an appeal by the plaintiff against the order dated 13-1-1979 of the Court of Second Additional District Judge, Vidisha, in Civil Suit No. 34-A of 1978, whereby. while dismissing an application of the plaintiff for grant of ad interim injunction, it had also dismissed the suit, stating that it was not maintainable an the ground that the jurisdiction of the civil Court to try the suit is barred by virture of Section 82 of the M. P. Co-operative Societies Act. 1960, (for short, hereinafter referred to as the Act).

        Held: It is not necessary to burden this order by detailing all the facts in the light of the view that we are taking hereinbelow of the matter. The plaintiff had along with the plaint filed an application far grant of ad interim injunction restraining the defendant- respondent herein from proceeding with the execution of the impugned award, that was passed under S. 64 of the Act in regard to a loan allegedly taken by one Jagannath. In answer to this application, the defendant, inter alia, contended that the suit was not maintainable being barred under S. 82 of the Act While deciding that application, as already stated hereinabove, the trial Court passed the impugned order. The question of jurisdiction was to be considered predominantly far the purpose of deciding the prima facie case of the plaintiff, on the matter of merits of the question at jurisdiction of the civil Court, it could be decided only after the written statement of the defendant was filed, which, in the instant case, has not yet been filed, as the procedure provided in the Code of Civil Procedure is that after the notice to the defendant of a suit, the defendant has to file a written statement and in that he is at liberty to raise a question of jurisdiction, which, if the Court thinks necessary and is required to be done so by law, it should decide that question by framing a preliminary issue. In the instant case, the trial Court did not follow this prescribed Procedure. Learned counsel for the defendantd`respondent herein was unable to point out that there is a provision in the Code of Civil Procedure far raising a question by way of a demur in the form of an application and that filling written statement, and that the matter can be decided without framing a preliminary issue. In the instant case, predominantly, the question of jurisdiction, as stated hereinabove, was in the matter of consideration of the prima facie case of the plaintiff for the purpose of deciding the application for grant of ad interim injunction.

        In the result, we are of the opinion that the impugned order in so far as it relates to the question of jurisdiction of the civil Court to try the suit, has to be set aside and is, accordingly, set aside. The case is remitted to the trial Court with a direction that after the written statement is filed by the defendant, if the trial Court is of the opinion, bearing in mind the provision of) O. 14 R. 2 CPC and the decided cases of this Court on the paint, that without recording any evidence the matter of jurisdiction can be decided, it may, as it thinks fit, decide it as a preliminary question Case remanded.