Karnataka High Court
Mohammed Ali vs Dawood Basha on 18 October, 1995
Equivalent citations: ILR1995KAR3420
ORDER 14 RULE 2 - Scope & Purport - Issues involving mixed questions of law & fact cannot be tried as preliminary issue : only those relating to question of jurisdiction or bar to entertain suit if suit or part thereof can be disposed of on basis thereof - Question as tc valuation : involves mixed question of fact & law not pure issue of law. (i) If there are issues of fact or issues involving mixed questions of law and fact then even if they relate to jurisdiction cannot be tried as a preliminary issue. That Order 14 Rule 2(2) provides issue of law pure or simple can be tried as a preliminary issue provided they relate to question of jurisdiction or bar to the entertainment of the suit and Court is of opinion the suit or case or part thereof can be disposed on the basis thereof. Any other question of law or any question of law other than one touching or relating to jurisdiction or other than relating to bar created in the suit, cannot be tried as a preliminary issue. (ii) The question as to valuation of the suit for the purpose of jurisdiction is the issue on fact which has to be first determined and the decision of this issue will involve recording of evidence to determine it. It is upon a finding on this issue, The Court may have to record other finding whether the suit is within the jurisdiction as well as the Court fee paid is insufficient. Thus, it is not even a pure issue of law but it involves a mixed question of fact and law. ORDER Hari Nath Tilhari, J.
1. This Petition under Section 115 of the Code of Civil Procedure is directed against the order of the Principal Munsiff, Bellary, rejecting the petitioner's application - I.A.IV moved with the prayer to the effect that issue-6 be tried as preliminary issue in O.S.No. 487/91. In the written statement to the plaint, the defendant applicant had taken the plea to the effect that the valuation furnished by the plaintiff is not in accordance with the rate and it is vague. The over-all market value of the schedule properties would be more than Rs. 5,00,000/-. In that view of the matter, the Munsiff Court had no jurisdiction to entertain the suit itself. In I.A.IV, the prayer was that issue be tried as preliminary issue. The trial Court rejected that application taking the view that it involves the mixed question of fact and law and it should be determined after leading of the evidence by the parties and not on the basis of their contentions taken in the pleadings. On this ground the trial Court rejected his application.
2. Having felt aggrieved from the order passed by the trial Court that issue No. 6 will be decided along with other issues, the defendant-applicant has come up in Revision under Section 115 of the C.P.C. The first and foremost important conditions in the matter of Revision under Section 115 is that the applicants should satisfy that the order amounts to a case which has been decided. The expression 'case decided' has been, as per the Explanation to Section 115 of the Code, defined to mean any order or an order deciding the issue. The learned Counsel for Revisionist relying on the Explanation urged that it is an order and which can be termed to be a case decided under Section 115 of the Code. The order in Explanation is not used in the general or ordinary sense of the term. The expression 'order' has been defined in the Code vide Sub-section 14 of Section 2 of the C.P.C. Under Sub-section 14 of Section 2 of the Code of the 'order' means the formal expression of any decision of a Civil Court which is not a decree. This definition of expression 'order' has to be taken into view when it is required to be considered whether a particular order amounts to case decided. Because it is well settled principle of Rule of Interpretation that words or the expressions used in the Act, are defined by the Act as per definition clause thereof then for the interpretation of the words and expression used and defined in the Act we must look into the definitions given therein. We are not concerned with any presumed legislative intents. The exception to this general rule are cases where context or otherwise requires. Therefore the expression 'order' as used in the Explanation to Section 115 of Code and must mean the formal expression of any decision of a Civil Court which is not a decree. Thus considered an order amounting a decision of some right or dispute as to right even if interlocutory in nature may amount to be a case decided. The decision means and postulates that there must be a dispute with regard to certain rights may be, a dispute inter-se the parties in the suit or may be dispute which relates to some right relating to procedural matters. Unless there is some decision of certain disputed rights either under substantive taw or procedural law the order cannot be termed to be an order amounting to case decided in the sense as it is used in the Explanation.
In the present case the only prayer has been made that issue-6 may be decided first. The trial Court has not given any decision one way or the other. The trial Court opined as issue is one of fact and law and the evidence has to be recorded on matters of fact for decision thereof. It cannot be decided as a preliminary issue but it will be decided along with other issues. In my view, in this order no right of the parties has been determined one way or the other. Apart from that what issue can be decided as preliminary issue it has been clearly provided in Order 14 Rule 2 of the C.P.C. Order 14 Rule 2 reads as follows :
"Court to pronounce Judgment on all issues : (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2) pronounce Judgment on all issues :
(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue."
A reading of Sub-rule (1) of Rule 2 of the Order provides that subject to the provision of Sub-rule (2) of Rule 2, has to pronounce its Judgment on all issues. Exception to the general rule as mentioned earlier is what is provided in Sub-rule (2) of Rule 2 itself. A perusal of Sub-rule (2) of Rule 2 shows that it is only those issues of law pure and simple which relate to the question of jurisdiction of the Court or which relate to bar to the suit created by law for the time being in force may be tried and decided as preliminary issue. If there are issues of fact or issues involving mixed questions of law and fact then even if they relate to jurisdiction cannot be tried as preliminary issue. That Order 14 Rule 2(2) provides issue of law pure or simple can be tried as a preliminary issue provided they relate to question of jurisdiction or bar to the entertainment of the suit and Court is of opinion the suit or case or part thereof can be disposed on the basis thereof. Any other question of law or any question of law other than one touching or relating to jurisdiction or other than relating to bar created in the suit, cannot be tried as a preliminary issue. That dealing with Order 14 Rule 2 as it existed then in S.S. KHANNA v. BRIG F.J. DILLON , the principle of law as under which appears was accepted by the legal clause when it amended Order 14 Rule 2 in 1976. The observation made by the Hon'ble Mr. Justice Shah in the case of Khanna v. Dillon read as under :
"Under Order 14 Rule 2 Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact would result in a lop-sided trial of the suit."
Where issues both of law and facts arise in the same suit and the Court is of opinion that the case or any suit may be disposed of on issues of law only, it shall try this issue first and for that purpose if it thinks fit postpone the settlement of issues of fact until issues of law have been determined. The jurisdiction to try issues of law apart from all issues of fact may be exercised only where in the opinion of the Court, the whole suit may be disposed of on the issues of law alone. But the Code confers no jurisdiction upon a Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all these issues in the suit will be tried by the Court not to do so especially when the decision on issues even of law depends upon the decision of issues of fact, would result in lop-sided trial of the suit.
Sub-rule (2) of Rule 2 was introduced by the 1976 amendment adopts in letter and spirit above Decision and it clearly states that only issues of law, which relate to jurisdiction of the Court or relating to bar to the suit, may, if Court thinks and the Court is of opinion that the suit can be disposed of or any part of the suit or case can be disposed of on that issues, may be tried and determined as preliminary issue and settlement of other issues may be postponed. In my opinion as such Court below was justified in rejecting the application. What is the valuation of the suit for the purpose of jurisdiction? Whether it is Rs. 10,000/- as mentioned in the plaint or Rs. 5,00,000/- as claimed in the written statement. There is the issue on fact which has to be first determined, and the decision of this issue will involve recording of evidence to determine it. It is upon a finding on this issue, the Court may have to record other finding that whether the suit is within the jurisdiction as well as the Court-fee paid is insufficient. Thus, it is not even a pure issue of law but it involves a mixed question of fact and law.
The learned Counsel for the petitioner laid great emphasis to the provisions of Section 11 of the Court-fee and Suit Valuation Act and submitted that it is provided in that Section if there is question of proper court-fee and there is dispute regarding that then that issue should be decided first. If there would be pure and simple question relating to court-fee and it would not have question affecting the jurisdiction of the Court, the provision of Court-fee Act could be said to prevail and it could be urged Section 11 of the Court-fees Act would apply. The Court-fee is a matter between the plaintiff and the State even if this issue is not decided and Court says it will decide it with other issues the defendant is not adversely prejudiced in any manner as regards the trial nor any injustice appears to have been done to him. Thus in my considered opinion the order of the trial Court did not suffer from any error of jurisdiction within either of the clauses mentioned in Section 115. Apart from the fact that the order in my opinion does not amount to a case decided. In addition as I have mentioned earlier it has not been mentioned as to how the order coming within the four corners either the two clauses 'a' or 'b' to Proviso to Section 115 of the Code which provides that under this Section no order shall be reversed or set aside except in cases covered either of the Clause (a) or (b) to the Proviso. That being the position, there is not merit in the Revision Petition. The Petition i accordingly dismissed.