Preliminary Issue

2023 CLC 1273 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O.VII, R.11 & O.XIV, R.2DefamationRecovery of damagesRejecting of plaintPreliminary issuePlaintiff was a government official who assailed defamatory statement made by defendant against himTrial Court after hearing parties on legal issues, dismissed the suitValidity

Where an issue of law and facts had arisen in plaint of the suit and Trial Court believed that case or part thereof on the issue of law only, Trial Court under the provision of O.XIV, R.2, C.P.C., could decide the issue related to (a) jurisdiction of the court or (b) a bar to the suit created by any law for the time being in force

To invoke provisions of O.VII, R.11(d), C.P.C., no evidence could be looked into and conclusion that the suit was barred under the law must be drawn from averments made in the plaint

Allegation of defamation was a mixed question of law and facts

Such issue could not be tried as a preliminary issue in other words, such issues could be those where no evidence was required and on the basis of plain reading of plaint of suit, it appeared that jurisdiction of Court was barred, then the Court could decide such issue of law at the first stance

High Court set aside judgment and decree passed by Trial Court and remanded the suit to Trial Court for decision afresh on merits

Appeal was allowed accordingly.

2023 YLR 1222 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), S.115, O.XIV, Rr. 1, 2 & O. XVII, R.3Suit for declaration and injunctionStriking of defencePreliminary issueMixed question of law and factDeterminationImproper valuation of suit

Petitioners/plaintiffs were aggrieved of order striking of their defence by two Courts below on the ground that they had failed to produce their evidence on preliminary issue

Validity

If any issue had raised mixed question of law and facts, then for its decision, evidence was required to be led

Such issue could not be treated as preliminary or legal issue

Trial Court after framing issues had already offered parties to produce their evidence

Order in question treated a preliminary issue necessitating recording of piecemeal evidence where Trial Court acted in exercise of its jurisdiction illegally and with material irregularities

Entire evidence built thereon had to crumble

Lower appellate court also failed to take notice of such fact and failed to exercise its jurisdiction, vested with him by law to rectify wrong committed by Trial Court

Both the Courts below failed to consider such aspect of the case and on erroneous and wrong assumption dismissed suit of petitioners/plaintiffs

Issue of improper valuation was not considered as a formal defect and a suit could not be thrown away on the ground of improper valuation because valuation of subject matter of suit,both for the purposes of jurisdiction and payment of court fees, could be corrected by Court after recording of evidence

High Court in exercise of revisional jurisdiction under S. 115, C.P.C. set aside judgments and decrees passed by two courts below and remanded the matter to Trial Court for decision afresh

Revision was dismissed, in circumstances.

1960 PLD 70 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Preliminary Issue -Court may presume allegations in plaint for purposes of' decision : [Kanhaya Lal v. National Bank of India Ltd. I L R 40 Cal. 598 ref].