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Indu Bhushan Rai v. Vinai Kumar Thakur - CIVIL REVISION No. 366 of 2006  RD-AH 16784 (25 September 2006)
Court No. 24
Civil Revision No. 366 of 2006
Indu Bhushan Rai Vs. Vinai Kumar Thakur
Hon'ble Umeshwar Pandey, J.
Heard Sri Pradip Kumar Srivastava, learned counsel for the revisionist and Sri Arvind Srivastava, learned counsel for the respondent.
This revision challenges the order dated 25.8.2006 whereby the court below has decided the issue regarding jurisdiction against the revisionist- defendant in the negative.
Learned counsel for the revisionist submits that the property in question, from which eviction has been sought by the plaintiff-opposite party, is an open land regarding which the suit would not lie before the court of Judge Small Cause. On the contrary, Sri Arvind Srivastava, learned counsel for the opposite party, submits that the plaintiff from the very beginning has come with the pleadings that the property from which the eviction is sought, is a property having construction over it in the form of a tin shade and therefore the suit would lie before the court of Judge Small Cause and nowhere else.
From a perusal of the pleadings of the parties, it is evident that the plaintiff has come with a case that the property in question, which is a tin shade, was let out to the defendant way back in the year 1999. The defendant's pleading is otherwise and it is stated that the land is an open land in which the tin shade was constructed at a subsequent stage by the defendant himself. In view of these counter pleadings of the parties against each other, such issue, which also involves decision on facts, should be taken up by the court not at a preliminary stage and it can be correctly decided only when the parties have led their entire evidence before the court. After considering such evidence as available on record, these factual controversies can be decided and not otherwise. This is what the court below has also observed all through in its impugned order but then by the order while making direction in its operative portion, the issue has been decided in the negative. This was an incorrect approach of the court below to the whole matter. The issue, as observed by the court below, should have been directed to be taken up for decision along with whole suit and it should not have been decided as a preliminary issue.
Accordingly, in this view of the matter, the impugned order dated 25.8.2006 is hereby set aside and the revision is allowed with a direction that the issue shall not be taken up as preliminary issue and shall be decided along with whole suit after the parties have completed their oral as well as documentary evidence before the court. The suit be taken up expeditiously and decided by the J.S.C.C. within a period of three months maximum hereinafter.
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