Punjab-Haryana High Court
Punjab State Of Civil Supplies ... vs Harmail Singh And Another on 7 September, 2000
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
JUDGMENT Bakhshish Kaur, J.
1. The challenge in this revision petition is to the impugned order as one of the issues pertaining to the point of limitation has been treated as preliminary by the trial Court.
2. A suit for the recovery of Rs. 3,73,34,370.90 i.e. Rs. 2,49,72,823.90 on account of shortage in wheat stock and Barley was filed by the Punjab State Civil Supplies Corporation (hereinafter referred to as 'the plaintiffs') against Harmail Singh (hereinafter referred to as 'the defendant,). It is averred that the defendant was handed over the charge of wheat of crop year 1979-80 and other stock articles in the capacity of Inspector of PUNSUP. During his tenure at PUNSUP Abohar Centre, the defendant had purchased wheat for the crop years 1980-81, 1981-82, 1982-83, 1983-84, 1984-85 and 1985-86. On physical verification of the stock, it was found that there was shortage of 5343 wheat bags. The shortage of 426 wheat bags was made good by the defendant, reducing the shortage of wheat stock to 4917 bags. A committee was constituted to conduct the verification of the stock and thereafter the present suit was filed.
3. The defendant raised objections preliminary as well as on merits. The preliminary objection which is relevant for the decision of this revision petition is that the suit is barred by limitation and Order 2 Rule 2 CPC.
4. On the pleadings of the parties, the trial Court framed issues on June 2, 1988 and the case was adjourned for recording the evidence of the plaint iff. Before any witness could be examined, the defendant moved an application for treating the issue of limitation as preliminary issue on the grounds that it can be decided without recording any evidence. The trial Court had, therefore, vide impugned order treated issue No. 2 as preliminary issue.
5. The petitioner's stand is that the issue of limitation cannot be decided without bringing on record the evidence because a committee constituted for stock verification had detected shortages and on 4.1.1995 the Accounts Branch of the office of District Manager, PUNSUP, Ferozepur had re-examined the record and calculated the shortage and other losses in question were detected.
6. Cause of action is a bundle of facts. The plaintiff in the plaint has given the details, and the date on which the shortage was found, re- examination was conducted, a committee was constituted and the shortage is detected by the Committee constituted for stock verification. All these facts require to be proved by examining the witness. Under para 22 of the plaint, it is pleaded as under:
"That the cause of action arose to the plaintiff to file the present suit against the defendant on 4.1.1995 when the Accounts Branch of the office of the District Manager, Ferozepore re-examined the record and calculated the shortage and other losses and the losses in question were detected."
In view of the above, it is clear that some evidence is required to be produced for the purpose of bringing the case within the period of limitation as this question rests on the detecting of shortage made by the committee besides other factors as pleaded in the plaint,
7. On the contrary, it is submitted by the learned counsel for the respondent that issue No. 2 can be decided without recording evidence, therefore, there is no ground for not treating it as preliminary issue and to support his argument he has placed reliance an Gur-charan Singh and another v. Hardial Singh, reported as 1973 P.L.J. 603. It was held therein that if the trial of a preliminary issue involves Ihe leading of some evidence also by the parties, that cannot be a ground for not treating the issue as a preliminary one.
8. In Bahu Ram and another v. Pakiza Begani and others, LXXW-1972 PLR 848, it was held that, "Under Order 14 Rule 2 CPC the Court is empowered to try certain issues as preliminary ones. There is nothing in this rule, which debars a party from leading evidence on the said issue, because the same has to be tried as a preliminary one. That being so, it cannot be said that an issue, which cannot be decided without leading evidence, can never be called a preliminary one. The mere fact that some evidence has to be led for the determination of those issue, in my opinion, is no reason in law to direct that they may not be tried as preliminary ones."
9. Both these authorities pertained to the period prior to the amendment of the Code of Civil Procedure. The amendment has been made by Act 104 of 1976 which came into effect on 1.2.1977. In a Full Bench authority reported as Sunni Central Waqf Board and others v. Gopal Singh Vishrad and others, AIR 1991 All. 89 under para 11 of the judgment, it has been observed as under:
"11. The word "shall" used in old Order 14, Rule 2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue."
In Shyam Sunder v. Hudibai and others, reported as AIR 1989 M.P. 316, it was held that issue relating to limitation requiring recording of evidence cannot be decided as preliminary issue.
10. In the given case in hand also, the pleadings raised by the plaintiff do require evidence which shall determine whether the suit was within limitation or not, therefore, the trial Court was in error in treating issue No. 2 as preliminary issue. In fact, all the issues must be tried together.
11. This Court has also observed that if the parties want (o lead evidence on an issue that ceases to be an issue of law. In this regard reference is made to Daljil Singh v. Joginder Singh Sekhou reported as AIR 1985 P&H 184, and the head note A reads as under:
"If an issue of law regulates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force, then it may be treated as a preliminary issue. Issue of law has not been defined in the Code. Normally if answer to an issue is de-terminable on the basis of some principle of law, that issue is called an issue of law. If the parties want to lead evidence on an issue, that ceased to be an issue of law. Under the old rule all Hie issues of law were required to be tried as preliminary issues but according to the new rule the issues of law as mentioned in sub-rule (2) can be tried as preliminary issues. In the new Rule 2(1) the word "shall" has been replaced by the word "may". That shows that a discretion has been given to the Court to try the issue as a preliminary issue or not according to the circumstances of each case. Mixed issues of law and fact cannot be treated as preliminary issues. AIR 1964 SC 497 Rel. on 1982(84) Pun LR 191 Disting."
For the sake of repetition, it needs to be mentioned that the physical verification of the stock of wheat conducted by the officials concerned on different dates, as pleaded in the plaint, requires to be proved on the strength of evidence to be led by the plaintiff. Thus, the trial Court was in error in treating issue No. 2 as preliminary issue. In fact, this issue alone should be decided along with other issues, on merits.
For the aforesaid reasons, this revision petition is allowed after setting aside the impugned order.
12. Revision allowed.