FAQIR HUSSAIN and others vs QURBAN HUSSAIN and another
The petitioners sought leave to appeal against the order of the Lahore High Court dismissing their constitutional petition in limine, which challenged the lower courts' refusal to treat the question of jurisdiction as a preliminary issue before recording evidence. The core legal question was whether the trial court was bound to decide the question of jurisdiction as a preliminary issue prior to other issues when it involved a factual controversy. The Supreme Court held that where an issue of jurisdiction involves a factual controversy regarding the nature of the suit land, it cannot be decided without recording evidence, and the lower courts rightly deferred its determination. The key principle laid down is that jurisdictional questions requiring factual inquiry through evidence need not be decided as preliminary issues and may be adjudicated along with other issues after recording evidence.
- Whether the question of jurisdiction must be decided as a preliminary issue when it involves a factual controversy?
- Can a trial court defer the decision on jurisdiction to be decided along with other issues after recording evidence?
- Whether a constitutional petition is maintainable against an interlocutory order refusing to treat jurisdiction as a preliminary issue?
- Section 172, Land Revenue Act
ORDER
1. ' GHULAM MUJADDID, J.---The petitioners seek leave to appeal against the order of the Lahore. High Court dated 5-7-1989 whereby their Constitution petition was dismissed in limine.
2. ' The petitioners raised a preliminary legal objection pertaining to the jurisdiction of the trial Court.
3. ' Their grievance is that the question of jurisdiction should not have been deferred to be decided alongwith other issues. Petitioners requested the trial Court in black and white to first deal with the question of jurisdiction. Their request was turned down by order dated 14-5-1989. They appealed against that order. The appeal was dismissed by the Additional District Judge by order dated 27-5- 1989.
4. ' As a last resort they invoked the Constitution jurisdiction of the Lahore High Court but did not succeed there.
5. Relying on section 172 of the Land Revenue Act learned counsel argued that the question of jurisdiction ought to have been decided first.
6. ' This contention has no force because the learned Judge of the Lahore High Court who dealt with the Constitution petition observed, "I find that the issue relating to the Court's jurisdiction involves factual controversy regarding the nature of the suit land. It has, therefore, been rightly observed by the Courts below that the issue could not be decided without recording the evidence. It is also not denied that the plaintiff-respondent has already produced some evidence on all the issues."
7. ' The aforesaid view of the High Court is in accordance with law. There is no other point worth examination.
8. ' Dismissed.