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ORISSA HIGH COURT
M.M. Das, J.
Sri Shiba Prasad Das —Petitioner
versus
Vysa Teli Jatiya Samiti, Cuttack —Opp. Party
W.P. (C) No. 31330 of 2011
Decided on 16.01.2013
For the Petitioner:M/s. Banshidhar Baug, M.R. Baug and S. Rath, Advocates.
For the Opp. Party:Mr. S.C. Samantray, Advocate.
IMPORTANT POINT
It is trite law by now that the Court can decide an issue as a preliminary issue if it is of the opinion that the case or any part thereof may be disposed of on an issue of law only and an issue which involves a mixed question of facts and law, cannot be tried as a preliminary issue which is required to be tried along with all other issues framed as contemplated under Order 14, Rule 2(1) C.P.C.
Headnote:Civil Procedure Code,1908—Order XIV, Rule 2(2)—Preliminary issue—It is trite law by now that the Court can decide an issue as a preliminary issue if it is of the opinion that the case or any part thereof may be disposed of on an issue of law only and an issue which involves a mixed question of facts and law, cannot be tried as a preliminary issue which is required to be tried along with all other issues framed as contemplated under Order 14, Rule 2(1) C.P.C-Only in such event, it may try that issue first if the issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force-Instantly, issue sought to be decided as a preliminary issue by petitioner not came under any of said categories—Trial Court was right in holding that the issue with regard to maintainability of the suit should not be decided as a preliminary issue inasmuch as the said issue was not an issue as contemplated under Order 1-4, Rule 2(2) C.P.C. and such an issue involves a mixed question of facts and law which also could not be decided as a preliminary issue-—District Judge held justified in holding that Revision was not maintainable in view of the amendment to Section 115 C.P.C. —Writ petition dismissed. (Paras 10 to 13)
Result: Writ petition dismissed.
M.M. Das, J.—The opposite party, as plaintiff has filed C.S. No. 86 of 2010 (III) before the learned Civil Judge (Senior Division), 1st Court, Cuttack with the following reliefs:
(i) Let the defendant be directed to pay the house rent at the rate of Rs. 950/- per month from Nov. 2007 to 30.9.2008, till the termination of tenancy;
(ii) Let a money decree be passed directing defendant to pay damages for his unauthorised occupation from 1st Oct. 2008 to end of Jan. 2010 at the rate of
Rs. 950/- thus, a money decree for Rs. 25,650/- as per Schedule-C be passed;
And that, to avoid multiplicity of suit the defendant be directed to pay damages for his unauthorized occupation during pendency of the suit and also liable to pay damages till giving delivery of vacant possession.
(iii) That the cost of the suit be decreed in favour of the plaintiff and against the defendant;
(iv) And if any other .relief/reliefs the plaintiff is entitled to be awarded, in his favour.
2. The plaintiff has alleged that the defendant-petitioner in this writ petition is the tenant in respect of the two shop rooms as described in Schedule-B of the plaint. The suit is ‘basically a suit for recovery of arrear house rent alongwith damages. The petitioner has filed the written statement denying the title of the plaintiff over the said shop rooms, inter alia, claiming his title over the said shop rooms. After framing of issues, the petitioner filed an application to hear the issue with regard to maintainability of the suit as preliminary issue under Order 14, Rule 2(2)C.P.C. on the ground that he has categorically stated in the written statement that he is not a tenant under the plaintiff and has claimed independent title over the suit land. It was further averred by him that in a Bebandobasta Case, which is subjudice before the Tahasildar, Sadar, Cuttack vide Bebandobasta Case No. 39 of 2002, he has filed an objection claiming sthitiban right over the said suit property and further, at his instance, W.P.(C) No. 261 of 2009 is subjudice before this Court wherein this Court has passed order of status quo. On that basis, the petitioner claimed that the suit as laid is not maintainable.
3. The opp. party filed an objection to the said petition stating that the said writ petition, being W.P. (C) No. 261 of 2009 has already been dismissed by this Court on 21.4.2011. The claim of title by the defendant-petitioner has to be established by him during hearing of the suit as well as the relationship of landlord and tenant is to be established by the plaintiff during such course of hearing and, if ultimately, the defendant succeeds in establishing his independent title over the suit premises/shop rooms and the plaintiff fails to establish the relationship of landlord and tenant, then only, the plaintiff will not be entitled to the reliefs claimed. Such question being a mixed question of facts and law cannot be decided as a preliminary issue.
4. The learned Trial Court on hearing the said application by his order dated 22.9.2011 discussing the cases of the parties in detail and referring to the order of this Court passed in W.P.(C) No. 261 of 2009, by which the writ petition was dismissed, came to the preliminary conclusion that the defendant-petitioner cannot deny the title of the plaintiff in view of the house rent agreement. The learned Trial Court, however, observed that the defendant is at liberty to claim title in the suit and hence, the maintainability of the suit due to pendency of the Bebandobasta Case No. 39 of 2002 cannot be taken up as a preliminary issue as the same is a mixed question of facts and law. Holding thus, the learned Trial Court rejected the said application.
5. The petitioner being aggrieved filed Civil Revision No.1 of 2011 before the learned District Judge, Cuttack, who by his order dated 22.11.2011, in view of the amended provision of Section 115 C.P.C., came to the conclusion that the revision is not maintainable. Being aggrieved
