Delhi District Court
Yakub Ali (Now Deceased) vs The Chief Wild Life Wardon on 10 March, 2022
IN THE COURT OF HEM RAJ
ADJ-08 : CENTRAL : ROOM No. 152 : THC : DELHI.
RCA No. 49/2018
Unique ID No.: DLCT01-003321-2018
In the matter of:
Yakub Ali (Now Deceased) : ...............Appellant
Through LRs
(A) Mst. Afroz Begum,
W/o Late Yakub Ali,
(B) Mehboob Ali,
S/o Late Yakub Ali,
(C) Mr. Zakir Ali,
S/o Late Yaqub Ali,
(D) Mr. Sharmeen,
D/o Late Yaqub Ali,
All R/o H. No. 26, Shahi Masjid,
Rasheed Market, Main Patparganj Road,
Delhi.
(E) Mst. Gulshan,
D/o Late Yakub Ali,
W/o Mr. Riyazuddin,
(F) Mst. Roshanar,
D/o Late Yakub Ali,
W/o Mr. Nayeem Ahmed,
RCA No. 49/2018 Page No. 1 of 15
Both R/o H. No. 1190, Mohalla Qasimpura,
Chandi Road, Hapur, Ghaziabad.
(G) Mst. Razia,
D/o Late Yakub Ali,
W/o Mr. Dilshad,
R/o Mohalla Thakuran,
Khari Kuan, Dadri,
Uttar-Pradesh.
Versus
The Chief Wild Life Wardon,
Second Floor, Vikas Bhawan,
I.P. Estate, New Delhi. ...............Respondent
Date of institution : 09.03.2018.
Date of pronouncement : 10.03.2022.
of Judgment
For Appellants : Mr. Javed Khan, Advocate.
For Respondent : Mr. Dheeraj Singh, Advocate.
JUDGMENT
1. The Judgment and decree dated 30.01.2018 ('impugned judgment') passed by Ld. Civil Judge-02, Central District, Tis Hazari Courts, Delhi (hereinafter referred as 'Ld. Trial Court') in Suit No. 98922/2016 is under challenge in this appeal. Vide the said judgment and decree the 'Ld. Trial Court' dismissed the suit for declaration, RCA No. 49/2018 Page No. 2 of 15 possession, permanent and mandatory injunction filed by the appellant.
2. The appellant and the respondent herein were plaintiff and the defendant before the 'Ld. Trial Court' and they shall be referred herein as per their original ranks before the 'Ld. Trial Court'.
The case of the plaintiff:
3. The facts of the case of the plaintiff are that the plaintiff on 04.12.2001 purchased one female elephant, namely, 'Rangili' in Harihar Chhetra Mela, Sonpur, Chhapra, Bihar. The relevant documents were issued to the plaintiff by the concerned authorities and 'Rangili' was brought to Delhi. Thereafter, the plaintiff informed the defendant about the same. On 14.10.2015, in the absence of the plaintiff, the defendant seized the elephant from his brother Yusuf Ali and transferred her to Delhi Zoo. On 19.10.2005 plaintiff produced all the ownership documents to the defendant. His brother Yusuf Ali was arrested and sent to judicial custody. Thereafter, plaintiff moved several applications for supurdari which were dismissed. Plaintiff also preferred a criminal revision petition but the same was also dismissed. The plaintiff filed a Civil Writ Petition No. 3782/2011 for release of the said elephant but the same was disposed of vide order dated 26.08.2011 with the liberty to the plaintiff to institute the proceedings where the evidence can be led to prove the ownership of the elephant seized by the defendant. Thereafter, the plaintiff filed a suit for declaration, possession and injunction on 05.10.2011 which suit was dismissed vide impugned judgment. Hence, the present appeal.
RCA No. 49/2018 Page No. 3 of 15The case of the Defendant:
4. The defendant claimed the suit of the plaintiff to be barred by law of limitation. The defendant further stated that it seized the elephant from the illegal possession of Yusuf Ali, brother of plaintiff on 14.10.2005 and on being questioned he stated that elephant was acquired from Ita Nagar, Arunachal Pradesh and he was in possession of the ownership certificate. He also claimed that elephant bore ID Mark (Microchip). The elephant was seized by the defendant. The seized animal was examined at Delhi Zoological Park, however, no micro chip or tab was found on the elephant.
Subsequently, Yusuf Ali was convicted for the criminal offence. The defendant further stated that the suit of the plaintiff is bad for non- joinder of necessary party as the Director of Rajaji National Park has not been made a party to the present suit. The defendant prays for the dismissal of the suit.
5. Vide order dated the Ld. trial Court framed the following issues on 29.09.2012:-
(i) Whether the suit is not maintainable for want of notice under Section 80 CPC? OPD
(ii) Whether plaintiff has no locus standi to institute the present suit? OPD
(iii) Whether plaintiff is guilty of suppression and concealment of material facts and has not approached the Court with clean hands? OPD RCA No. 49/2018 Page No. 4 of 15
(iv) Whether the suit is not maintainable in its present form?
OPD
(v) Whether suit of the plaintiff is without any cause of action? OPD
(vi) Whether this Court has no territorial jurisdiction to try and entertain the present suit? OPD
(vii) Whether the suit is barred for non joinder of necessary parties? OPD
(viii) Whether the suit is barred by principle of res-judicata?
OPD
(ix) Whether plaintiffs are entitled for decree of permanent injunction, as prayed? OPP
(x) Whether plaintiffs are entitled for decree of declaration, as prayed? OPP
(xi) Whether plaintiffs are entitled for decree of recovery, as prayed? OPP
(xii) Whether plaintiffs are entitled for decree of mandatory injunction, as prayed? OPP
(xiii) Relief.
6. The suit of the plaintiff was dismissed by the learned trial Court holding that suit of the plaintiff is barred as per the mandate of Section 3 of the Limitation Act, 1963. Further, the plaintiff has not succeeded in establishing that the elephant purchased by him and seized by the defendant, is the same elephant or not.
RCA No. 49/2018 Page No. 5 of 157. Ld. Counsel for plaintiff has assailed the impugned judgment on the following grounds:-
(i) That the learned trial court had wrongly opined that elephant purchased by late Yakub Ali and the elephant seized by defendant on 14.10.2005 was not the same. The finding of trail Court is against the evidence on the record.
(ii) That the Hon'ble Delhi High Court vide order dated 26.08.2011 passed in C.W.P. No. 3782/2011 permitted the plaintiff to file the present suit and the plaintiff filed the present suit on 05.10.2011 i.e. within two months from the date of the said order.
Hence, the plaintiff is entitled for calculation of filing of the suit from 26.08.2011 and he is entitled for exemption of period of limitation under Section 14 (3) of the Limitation Act.
(iii) Further, the Ld. Trial Court ignored the notice under Order 12 Rule 8 CPC asking the defendant to produce the documents which were not produced in the Court and the Ld. Trial Court failed to take adverse inference against the defendant.
8. ISSUES No. 1, 2, 3, 4 & 5 are reproduced here as under :-
(i) Whether the suit is not maintainable for want of notice under Section 80 CPC? OPD
(ii) Whether plaintiff has no locus standi to institute the present suit? OPD RCA No. 49/2018 Page No. 6 of 15
(iii) Whether plaintiff is guilty of suppression and concealment of material facts and has not approached the Court with clean hands? OPD
(iv) Whether the suit is not maintainable in its present form?
OPD
(v) Whether suit of the plaintiff is without any cause of action? OPD
9. The onus to prove these issues was on the defendant. These issues were disposed-of by the Ld. Trial Court by observing that during arguments Ld. Counsel for the defendant did not press the same. Ld. Trial Court further observed that since it has also been held that the suit of the plaintiff was barred by limitation, therefore, elaborate discussion on the said issues would be the wastage of judicial time. Accordingly, these issues were decided against the defendants and in favour of the plaintiff.
10. Ld. Counsel for the Appellant in this regard argued that since the onus to prove these issues was upon the respondents and respondents have failed to lead any evidence, therefore, natural corollary which would follow is that the suit should be decreed in favour of the Appellant.
11. On the other hand, Ld. Counsel for the defendants has argued that the plaintiff did not serve any notice under Section 80 CPC upon the defendants before institution of the suit which made the suit of the plaintiff to be not maintainable.
RCA No. 49/2018 Page No. 7 of 1512. I have seen the record of Ld. Trial Court. I have found that the submissions of Ld. Counsel for the respondent to the effect that he did not press the said issues were not mentioned in the record of Ld. Trial Court. No statement of Ld. Counsel for the defendant or its authorized representative has also been recorded by the Court to this effect. No cross-objections has also been filed by the defendant in this court. Order 41 Rule 22 CPC provides that the respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the findings against him in the court below in respect of any issue ought to have been in his favour and may also take cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court.
13. Admittedly, there are no submissions of the defendant on the record of the trial court that it did not press the issues no 1 to 5. No statement also came to be recorded in this regard. The so called concession as recorded by the Ld. Trial Court in the judgment would mean that the defendant had no objection even if no notice under Section 80 of CPC was served upon the defendant.
14. Apparently, no finding has also been given by the Ld. Trial Court on issues No. 1, 2, 3, 4 & 5 which includes the issue No. 1 which pertains to the maintainability of the suit for want of statutory notice under Section 80 CPC. The next question which arises is whether it is mandatory for any Court to give a finding on all issues or RCA No. 49/2018 Page No. 8 of 15 can the court leave certain issues undecided in view of its decision on other issues.
15. The relevant provision to this aspect can be found under the provision of Order 14 Rule 2 CPC which reads as under:-
6. O. XIV R. 2 of the C.l P.C. reads as under:
"2. (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 settle-
ment of the other issues until after that issue has been deter- mined, and may deal with the suit in accordance with the deci- sion on that issue."
16. Section 14 (2) (1) CPC provides that notwithstanding the fact that a case may be disposed-of on preliminary issue, the Court shall, subject to the provisions of sub rule 2 pronounce the judgment on all the issues. Sub-Section 2 provides that where in the same suit, issues of both, law and fact arises and the Court is of the opinion that the case or any part thereto may be disposed-of on issue of law only, the Court may try that issue first if that particular issue pertains to the jurisdiction of the Court or to a bar to the suit created by any law for the time being in force. Therefore, the conjoint reading of the provision makes it clear that a court can only dispose-of the suit on a preliminary issue when such preliminary issue pertains to the RCA No. 49/2018 Page No. 9 of 15 jurisdiction of the Court or when there is a bar to the suit created by any law which is in vogue.
17. The next question which arises for consideration is when Court has not treated an issue as a preliminary issue and tried all the issues together, then in such situation can the Court leave an issue undecided in the judgment while not giving any finding on such issue.
18. In the judgment of Chetan Textiles, Bombay Vs. Jethabhai Hirji & Co. & Others, AIR 1985 Guj. 95 it was held by the Hon'ble High Court of Gujarat that it is not open to the Court after framing of all the issues and recording evidence on all the issues to give a finding only on the one issue and refrain from giving findings on other issues. It was further held that the Trial Court has obviously adopted a course which was not permissible under the law in view of the mandate given under Order 14 Rule 2 CPC. The relevant observations are reproduced herein under:-
"6. ..................O. XIV R. 2(1) clearly provides that even though it may be possible to dispose of a case on a preliminary issue the Court should pronounce its judgment on all issues subject to the provisions of sub-rule (2). Sub-rule (2) provides that if there is an issue of law only if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, then if the Court thinks fit, it can postpone the settlement of the other issues until after that issue has been determined and the Court may thereafter deal with the suit in accordance with the decision on that issue. As stated above, the Court had not reached a conclusion that an issue of law as contemplated by O. XIV R. 2(2) had arisen in the present case. As a matter of fact, the Court had declined in both the matters to hear the issue of jurisdiction as a preliminary issue and it thereafter proceeded to record evidence on all issues and hear arguments also. In the circumstances, it is clear in view of the provisions of O. XIV R. 2 of the Civil P.C. that it was not open for the Court after RCA No. 49/2018 Page No. 10 of 15 framing all issues and recording evidence on all issues to give a finding only on one issue and refrain from giving findings on other issues. The trial Court has obviously adopted a course which was not permissible under the law in view of the mandate under O. XIV R. 2 of the Civil P.C. Such orders therefore cannot be permitted to subsist and have to be set aside.
19. In Kusum Kant T. Nagda Vs. Mariam Bi, 2005 (2) MH L.J. 67, it was held by the Hon'ble High Court of Bombay that once the trial Court has not adopted the procedure prescribed under Order 14 Rule 2 CPC and framed all issues including the issue relating to the merits of the case, therefore, Ld. Trial Court confining its decision to the issue of jurisdiction only was clearly not permissible. The relevant observations are reproduced herein under:-
"9. Even under Order 14, Rule 2 of the Code of Civil Procedure, the trial Court could have considered the question of jurisdiction as a preliminary issue although all other issues have been framed only if it had found it related to the issue of law only. In such circumstances, all other issues are to be settled later, after the issue of jurisdiction is determined. In the present case, the trial Court has not adopted even this procedure as laid down under Order 14, Rule 2 and instead the trial court has framed all issues including the issues relating to the merits of the case. The parties have been permitted to lead evidence in regard to all issues. It is only at the stage of writing the order that the trial Court has confined its decision to only first issue, that of jurisdiction. In my view, it is clearly an erroneous procedure adopted by the Court. The trial Court ought to have decided all issues since evidence had been led on all issues which had been framed together".
20. In Jagadish Kant Thatte Vs. Municipal Corporation of Greater Mumbai and another, Appeal No. 1107 of 201, decided on 14.03.2007 by the Hon'ble High Court of Mumbai, the Hon'ble High Court considered the judgment of Kusum Kant T. Nagda (Supra). In that case, Ld. Counsel for the Appellant relied upon the Judgment of Kusum Kant T. Nagda (Supra) in support of his RCA No. 49/2018 Page No. 11 of 15 contentions that once the trial Court did not decide the issue of jurisdiction as a preliminary issue and recorded the evidence, then the Ld. Trial Court could not have passed an order of returning the plaint. In the said judgment of Jagadish Kant Thatte (Supra), the Hon'ble High Court vide order dated 18.02.2005 referred the matter to the Larger Bench of the Court. Thereafter, the Hon'ble Chief Justice made a reference to the Division Bench and vide order dated 15.12.2006, the Hon'ble Division Bench held that view taken by the single judge in the case of Kusum Kant T. Nagda (Supra) was correct. The Hon'ble High Court in the case of Jagadish Kant Thatte (Supra) also held that once the parties and the Court have chosen not to try the issue with regard to jurisdiction or maintainability of the suit as a preliminary issue and evidence is led on all the issues, therefore, it is necessary for the Court to record findings on all the issues. The relevant observations are reproduced herein under:-
"6. I have considered the submissions. I have already referred the issue which was framed for decision of a larger Bench. It will be necessary to refer to the decision of the Division Bench. In paragraph 11, the Division Bench has considered the provisions of the Code of Civil Procedure, 1908. The Division Bench in the said paragraph proceeded to hold as under:-
"11...If we carefully consider the provisions of Order XIV rule 2 (1) and (2) together, then, it is absolutely clear that once the course contemplated under sub rule (2) of rule 2 of Order XIV of the said code is not followed by the court then the court must necessarily follow the other course which says that the court shall record the findings on all the issues. If, even after not adopting the course contemplated under sub rule (2) of rule 2 of Order XIV, court is allowed to dispose of the matter merely on one issue of jurisdiction or maintainability, even after full trial of the suit, then it would amount to allowing the court to proceed against the letter and spirit of the amended mandatory provision of Order XIV Rule 2 (1). So, once the parties and the court have chosen not to try the issue with regard to jurisdiction or maintainability of the suit as a preliminary issue and on the contrary evidence is led on all the issues and the matter is fixed for final order or judgment then it is necessary for the court to record findings on all the issues.RCA No. 49/2018 Page No. 12 of 15
If the court is allowed to pass final order without giving finding on other issues and dispose of the matter simply on the point of jurisdiction at such stage, the very purport of the provision of Order XIV Rule 2 would be defeated. We are, therefore, of the considered opinion that the view taken by the learned Single Judge of this Court in a case KusumKant T. Nagda Vs. Mariambi Ibrahim 2005 (1) All M.R. 255 is correct."
21. In view of the aforesaid preposition of law it is abundantly clear that once the Court has framed the issues including the issue of jurisdiction and maintainability of the suit along with other issues and the Court or the parties have not chosen the issue of jurisdiction or the issue of maintainability as a preliminary issue and proceed further to record the evidence on all the issues including the issue of merit, then, it is incumbent for the court to record findings on all the issues.
22. Now coming back to the facts of the case, it is clear from the record of the trial Court that neither the trial Court has held any issue as a preliminary issue nor the parties had given consent for the same. As a matter of fact, no issue was treated as a preliminary issue. All the issues were tried together. As such the evidence was also recorded on all the issues together.
23. Here arises a question, whether, in view of the observations of the Ld. Trial Court that Ld. Counsel for the defendants did not press the issues No. 1, 2, 3, 4 & 5 including the issue of statutory notice under Section 80 of CPC, the approach of the trial Court was justified or not. Admittedly, there is no observation of the Ld. Trial Court in any of the order sheet that Ld. Counsel for the defendants has not pressed the issues No. 1, 2, 3, 4 & 5. It is also a RCA No. 49/2018 Page No. 13 of 15 fact that statement of Ld. Counsel for the defendants or the AR was not recorded to this effect before Trial Court.
24. Ld. Counsel for the defendant has argued that since no notice under Section 80 CPC was given to the defendants, therefore, the suit was not validly instituted and the same is not maintainable. One of the grounds taken by the Appellant is that since the defendants have not lead any evidence on the aforesaid issue, therefore, the version of the plaintiff should be accepted as true and correct. Before this court both the Ld counsel has advance submissions on the issues no 1 to 5. In my considered opinion since this Court is the first Appellate Court, therefore, this Court is bound to give its findings on all the issues. This court is duty bound to appreciate the facts of the case and evidence of the parties. If this court gives its findings on the issues No. 1, 2, 3, 4 & 5 for the very first time, the parties would lose their one right of appeal on the aforesaid issues. Therefore, this court refrains itself from giving any finding on the issues No. 1, 2, 3, 4 & 5. In the considered opinion of the Court, the interest of justice would be met if the case is remanded back to Ld. Trial Court to give its decision on the issues No. 1, 2, 3, 4 & 5 only and not to touch any other issue thereof. Hence, this Court is of the opinion that the present case should be remanded back to the Trial Court to decide the issues no 1 to 5 only. Therefore, the Ld. Trial Court is directed to give findings on the issues No. 1, 2, 3, 4 & 5 only without touching the other issues by giving a reasonable opportunity to the plaintiff and the defendants for the arguments on the same. Ld. Trial Court is further directed to RCA No. 49/2018 Page No. 14 of 15 decide the matter within one month from today or in any circumstances not beyond two months.
25. A copy of this judgment be placed in the file of trial Court. Trial Court record be sent back and appeal file be consigned to Record Room after necessary compliance. Both the parties are directed to appear before the Ld. Trial Court on 16.3.2022 at 2 pm.
26. Let entire record of the appeal be called as and when the trial Court file is received again along with its findings on the issues No. 1, 2, 3, 4 & 5. The appeal stands disposed-of accordingly.
Digitally signed by HEM HEM Date:
RAJ RAJ 16:51:26 2022.03.10 +0530 Pronounced in the Open Court (Hem Raj) On 10th March, 2022. ADJ-08 : Central : THC : Delhi.RCA No. 49/2018 Page No. 15 of 15