Patna High Court
Smt. Sarojini Roy And Anr. vs Shivaram Poddar And Ors. on 19 September, 1956
Equivalent citations: AIR1957PAT59, AIR 1957 PATNA 59
JUDGMENT Choudhary, J.
1. This application in revision by the plaintiffs arises in the following circumstances. On the Exihibition Road in Patna, there is a house called "Lalkothi" belonging to the petitioners. There was a negotiation for renting this house with the defendants-opposite party in the year 1951, and the terms according to the case of the petitioners, were settled by means of various letters that passed between the parties.
On the 30th of January, 1952, the parties agreed to the final term according to which, as is alleged by the plaintiffs, the defendants agreed to pay rent at the rate of Rs. 1,017/- per month Including the municipal taxes. The defendants un disputably occupied the house in March, 1952, and the plaintiffs have alleged that since then for some time they paid the rent at the above stipulated rate, but" a receipt was granted only for Rs. 467 /-.
Subsequent to September, 1952, the defendants did not like to pay the rent at the above stipulated rate, and sent, for some time, cheques for the sum of Rs. 467/- per month. The plaintiffs refused to accept the same, and, naturally, the defendants suspended payment of the rent.
2. In the year 1953, one of the petitioners, Mr. A. C. Roy made an application before the Rent Collector for the eviction of the defendants on the ground of non-payment of rent as well as of personal necessity. The defendants objected to his application and traversed both the grounds taken by him. The Rent Collector decided both the points in favour of the defendants', and the application of Mr. A. C. Roy for eviction was dismissed.
3. On the 29th of May, 1953, the petitioners, Including Mr. A. C. Roy, filed a suit, out of wnicn the present application arises, for recovery of arrears of rent for the months of October, November and December 1952 at the rate 61 Rs. 1,017/- per month. The defence taken by defendants 1 and 2 was that the rent was reduced to Rs. 467/- per month.
On the 27th of August, 1954; the Court below held that the House Controller alone had juris-diction to determine the rate of rent, and, as such, the plaintiffs could not re-open the question of rate of rent in the present suit. This order seems to have been passed without hearing the plaintiffs who came up in revision to this Court in Civil Revision No. 883 of 1954.
This court allowed the civil revision application, and gave a direction for rehearing of the matter by the Court below. Thereafter, on the 16th of April, 1955, the defendants made an application praying that the question of maintainability of the suit be decided as a preliminary issue. The Court below did not feel inclined to accept that prayer, and ordered that the case shall be heard on merits, fixing the 23rd of April, 1955, for hearing.
On the 30th of May, 1955, the petitioners made an applcation, praying that all the issues may be heard together, and that they be recast and fram-ed in the manner mentioned in their application. No final order was passed on this application. On the 23rd of July, 1955, the petitioners again filed an application, praying that the case may not be decided piecemeal, and that plaintiff No. 1 may be examined and the documents filed by them may be accepted. .
In the alternative, they also prayed that the statements contained in the plaint be accepted as true. On the 6th of August. 1955, this petition was taken up for hearing, and the learned Munsif passed an order that the question as to whether the plaintiffs could re-open the question of rate of rent in the present suit shall be considered, and, after hearing both the parties on this point, the suit shall be heard on merits.
On the 24th of September, 1955, the court below heard the above preliminary point, and held, that the plaintiffs were debarred from raising the question of rate of rent in the present suit. No final order, however, was passed for disposing of the suit. Against that order, the plaintiffs have come up in revision to this court.
4. After having heard the parties, it appears to me that this application has to be allowed, and the case has to be sent back for rehearing. After the order of this Court in Civil Revision No. 883 of 1954, the Court below was asked by the defendants themselves to consider if it would hear the preliminary point regarding the maintainability of the suit. It definitely passed an order that the suit shall be heard on merits.
On a subsequent date, however, the court seems to have changed its mind, and took up the preliminary point for hearing. I, for myself, have not been able to find any provision of law under which the Court below could do as it did at this stage. Mr. Untwalia, appearing for the opposite party, has drawn our attention to Order XIV Rule 2 of the Code of Civil Procedure. It runs as follows:
"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 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."
This rule, in my view, applies at an earlier stage of the proceeding, when the issues have to be, framed, and authorises the Court to deal with the issue of law first, if the Court is of opinion that the decision of that issue will dispose of the case, In the present case, however, the order of the Court below is perfectly clear on this point when it says that, after the determination of this issue the suit shall be heard on merits.
Obviously, the court meant that the- decision of the preliminary point could not dispose of the suit. As such, Order XIV, Rule 2 can be of no assistance to the argument raised by Mr. Untwalia. The Privy Council as well as all the High Courts, Including this Court, has repeatedly held that, in appealable cases, Courts should, as far as possible, decide all issues, and there should not be piecemeal trial which causes serious inconvenience and great expenses to litigants.
Mr. Untwalia has not disputed, and could not dispute, this proposition of law. Thus, it seems to me that the Court, in trying the preliminary issue by way of piecemeal trial of the case, has acted with material irregularity in the exercise of its jurisdiction.
5. The result is that the application is allowed, the order of the Court below deciding the preliminary issue in favour of the defendants and holding that the plaintiffs are debarred from raising the question of rate of rent in the present suit is set aside, and the case is sent back to the Court below for a fresh decision of all the issues, including the present issue, in accordance with Taw after hearing the parties and giving opportunity to them to adduce such evidence as they may like. In the circumstances of this case, there will be no order as to costs in this Court.
Dayal. J.
6. I agree.