Patna High Court
Mohammad Abdul Rauf And Ors. vs Mostt. Khadeja And Ors. on 3 October, 1983
Equivalent citations: AIR1984PAT180, AIR 1984 PATNA 180, (1984) PAT LJR 620
ORDER Ashwini Kumar Sinha, J.
1. The plaintiffs are the petitioners in this civil revision application. It is directed against that part of the order dated 16-3-1977 by which the trial Court has directed the plaintiffs to pay ad valorem court-fees.
2. The plaintiffs-petitioners filed Title Suit No. 254 of 1969 in the Court of the Subordinate Judge, Bhagalpur for a declaration that the plaintiffs had legal, valid and indefeasible title over the suit land and the defendants-opposite party had no title. The plaintiffs have also prayed for a declaration that the entry made in the recent khatian was wrong. The defendants-first party-opposite party appeared and filed their written statement claiming that the entry in the survey record was correct. In the written statement, the defendants did not challenge that the plaintiffs were to pay ad valorem court-fee, the suit could not proceed unless the plaintiffs paid the ad valorem court-fee. The plaintiffs contested this application filed by the defendants.
3. The issues were framed and settled by the trial Court, Issue No. 7 was "whether the Court-fee paid is sufficient". This issue was taken up as a preliminary issue and was heard and disposed of by the trial Court by order dated 8-8-1974. The trial Court by this order dated 8-8-1974 held that the court-fees paid was sufficient.
4. Later the plaintiffs-petitioners filed a petition on 7-2-1976 for substituting the heirs of deceased defendaats Nos. 1 and 11 after setting aside abatement. This application filed by the plaintiffs-petitioners was heard and by order dated 10-3-1977 the trial Court allowed the substitution application.
5. While hearing the substitution matter and passing order thereon, the trial Court suo motu reviewed the court-fee matter and directed the plaintiffs-petitioners to pay the ad valorem court-fee. As already stated above, the issue with regard to the payment of court-fee (issue No. 7) was gone into by the trial Court as a preliminary issue and a final order was already passed on 8-8-1974 holding that the court-fee paid was sufficient. As agninst this order dated 8-8-1974, which had become final, the State of Bihar (defendant 3rd Party -- Opposite Party No. 38 in the civil revision application) did not move the higher Court.
6. The question is whether the issue having already been decided as a preliminary issue and a final order having been passed, could the Court suo motu review that order. It is desirable to state here that there is no petition either on behalf of the State of Bihar or on behalf of the defendants before the trial Court for reviewing its earlier order dated 8-8-1974. It is well settled that once the tial Court has passed an order upon an issue and has signed its order, then, as far as the trial Court is concerned, that issue cannot be reagitated at a later stage befote the trial Court because if the trial Court is permitted at a later stage to reconsider its findings recorded on issues already framed and decided earlier, there would be no end of litigation.
7. Order XIV, Rule 2 of the Civil P. C. (hereinafter to be referred to as the Code) is in these terms :--
"2. (1) Notwithstanding that a case may be disposed of ou 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, 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." This rule provides that a case may, in certain circumstances, be decided piecemeal. If an issue of law as mentioned in Order XIV, Rule 2 Sub-clause (2) (a) and (b) of the Code disposes of the case, the matter ends; but if the decision on that issue does not finally dispose of the case, the trial Court then would go to decide the suit on other issues. In my opinion, the Code provides for the decision of a single issue at that stage and so far as the trial Court is concerned, that issue is decided once and for all. If a Court having decided a preliminary issue passed a final order, it, in my opinion, is not entitled to reconsider its earlier decision and go on altering and altering its decision number of times at the invitation of the parties. In my opinion, once the Court has passed its order upon that issue and has signed it, then so far as the trial Court is concerned, that issue cannot be reagitated. If the trial Court is allowed to reconsider its finding recorded on issue decided earlier, there will be no end of litigation. There must be some finality of decisions/orders and once the preliminary issue has been decided, it has been decided once for all so far as the trial Court is concerned and that cannot be reconsidered by the trial Court. More so, in this case, as already stated above, there was no application either on behalf of the State of Bihar (defendant 3rd party) or on behalf of the defendants for the review of the earlier order passed on 8-8-1974. There is also another legal lacuna in the impugned order. There is no indication even in the impugned oder that the Court had passed an order on this issue earlier. There is atso no indica-tion, whatsoever, as to how it comes within the purview of Order XLVII, Rule 1 of the Code. Learned counsel appearing on behalf of the State of Bihar has fairly conceded that it was difficult to support the impugned order.
8. In the result, this application is allowed. That part of the order dated 10-3-1977 by which the plaintiffs have been directed to pay the ad valorem court-fee is set aside. However, in the circumstances of the case, there will be no order as to costs.