Kerala High Court
Mary W/O Thomas And Anr. vs Mathew Joseph And Ors. on 19 December, 1991
Equivalent citations: AIR1992KER305
ORDER L. Manoharan, J.
1. Defendants 2 and 4 in O.S. No. 161 of 1987 are the revision petitioners. They filed LA. 1329 of 1988 stating that the maintainability of the suit has to be heard as preliminary issue. Additional issue No. 4 is as to the maintainability of the suit. Lower Court found that the said issue concerns a mixed question of law and fact which requires evidence and hence has to be tried along with the other issues. The said order is under challenge in the Civil Revision Petition.
2. Suit for declaration of the plaintiffs right of easement of way over the plaint B schedule property, for a mandatory injunction to remove the obstruction created by defendants 2 and 4 in the B schedule property, and for a prohibtory injunction against the defendants from obstructing the plaintiff plying lorry through the B schedule property. One of the contentions of defendants 2 and 4 in their written statement was, after document dated 18-6-1983, plaintiff has no right or title over the plaint A schedule property, that one Ouseph Ouseph had instituted O.S. 711 of 1971 in which the plaintiffs father was the first defendant and that the plaintiffs contentions are barred by the decision in the said case. Additional issue No. 4 was as to the maintainability of the suit and additional issue No. 6 was whether the contention of the plaintiff is barred.by estoppel by reason of the decision in O.S. 711 of 1971.
3. The question whether an issue is to be tried as a preliminary issue has to be decided as per the provision in Order XTV, Rule 2, C.P.C. Sub-rule (1) of Rule 2 of Order XIV enjoins that, the Court shall pronounce judgment on all issues subject to the provisions in Sub-rule (2) thereof. Therefore, the general Rule is that the Court should pronounce judgment on all issues. Rule 2 of Order XIV, C.P.C. reads:
"2. 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."
Therefore, unless it is found that issue that is sought to be tried as a preliminary issue would answer the ingredients of Sub-rule (2), the prayer of the revision petitioner cannot be allowed.
4. Learned Counsel for the revision petitioners contended, though issue No. 4 concerns only the maintainability the same would take in additional issue No. 6 also. According to the learned counsel the suit is not maintainable on account of the bar of resjudicata also. According to him the view of the lower Court that the said issue No. 4 is a mixed question of law and fact is not correct and that the Court exercised its jurisdiction with material irregularity in finding that additional issue No. 4 cannot be tried as the preliminary issue. On the other hand, learned counsel for the respondents contended that, after the amendment to Order XIV, Rule 2, C.P.C. there is no obligation on the Court that any issue should be tried as preliminary issue and that since the decision to try the said issue also along with other issues after recording the evidence will not cause any injustice, there could be no impropriety in the exercise of the jurisdiction by the lower Court. It was also contended by the learned counsel that when the issue requires recording of evidence, the same cannot be disposed of as a preliminary issue as per Order XIV, Rule 2. Order XIV, Rule 2 before the amendment read as follows:--
"2. Issues of law and of fact.-- 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."
After the 1976 amendment the word 'shall' in Order XIV, Rule 2, C.P.C. is substituted by the word 'may'. Sub-rule (2) added by the 1976 amendment enjoins that for trying an issue as a preliminary issue, the same must relate to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. Even where issues of the said nature arise, what is stated in Sub-rule (2) is, the Court may try that issue first. What is significant to be noted is, the Court has got discretion to decide whether even the said type of issue should be tried as preliminary issues. The conditions, therefore, to be satisfied are, the Court must be of the opinion that such preliminary issue can be disposed of on law and the issue relate to jurisdiction of the Court or a bar to the suit created by law.
4A. Once it is seen that evidence is to be recorded, the issue will not fall under Sub-rule (2). It is held in the decision in Thiruvampadi Rubber Co. Ltd. v. Damodaran Nair, 1984 Ker LT 586: (AIR 1984 Ker 191) only an issue raising a pure question of law, falling either under clause (a) or (b) of Sub-rule (2) of Order XIV where evidence is not necessarily to be recorded can be tried as a preliminary issue. In the decision in Bairagi Ch. Das v. Kartik Chandra Das, AIR 1982 Orissa 272, it is held that, an issue of fact or a mixed question of fact and law cannot be decided as a preliminary issue. Even in the affidavit to I. A. 1329 of 1988 what the revision petitioner averred is that, the plaintiff has no title to the A schedule property and hence is not entitled to any easement right over the plaint B schedule property, consequently the issue regarding the maintainability has to be heard as a preliminary issue. Certainly, that is not a question of law; and the same requires evidence to be recorded.
5. Even assuming that additional issue No. 6 could be treated as once concerning res -judicata by reason of the finding in O.S. 711 of 1971, the same in the circumstance, cannot be a bar to the suit created by law within the meaning of Sub-rule (2) of Order XIV, Rule 2. A judgment can operate as res judicata if the conditions enjoined under Section 11, C.P.C. are satisfied, it should be proved that the issue in the suit was directly or substantially in issue in an earlier suit between the same parties, or between parties under whom they claim, and that they were litigating under the same Title. A compromise decree creates an estoppel by judgment. Estoppel is a rule of evidence. In either case, the matter involves proof. Further res judicata prevents only trial; it does not prevent institution or entertaining of the suit. Therefore res judicata or estoppel cannot be said to be a bar to the suit created by law within the meaning of Clause (b) of Sub-rule (2) of Order XIV, Rule 2, C.P.C. Thus, it cannot be said that the issue was one which could be tried as a preliminary issue.
6. A Full Bench of the Allahabad High Court in the decision in Sunni Central Waqf Board v. Gopal Singh Vishrad, AIR 1991 Allahabad 89, as to the nature of jurisdiction exercised by the Court under Order XIV, Rule 2, C.P.C. held at page All 93:
"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."
Thus, even if the Court is of the opinion that the case or any part thereof can be disposed of on an issue of law only, it is not obligatory for the Court to try the same as a preliminary issue. The decision in Usha Sales Ltd. v. Malcom Gomes, AIR 1984 Bom 60 also held that the Court is not bound to try an issue as preliminary issue even as per Sub-rule (2) of Rule 2 since it is not obligagory. Sub-rule (2) of Order XIV, Rule 2, C.P.C. is indicative of the fact that, the Court has got discretion in the matter. The decision in M.D. Nanjundaswamy v. Basic Eduation Society, AIR 1990 Kant 245 held that the discretion exercised by the trial Court in this regard cannot normally be interfered with by the High Court unless it is shown that the same is likely to result in injustice.
7. As already has noticed, the issue in question concerns mixed question of law and fact. The same requires evidence to be recorded. Even otherwise, the trial Court has discretion in deciding as to whether an issue has to be tried as a preliminary issue; and in this case, it is not shown the declining of the request to try the issue as a preliminary issue is likely to cause injustice. Apart from the same, the issue in question does not satisfy the conditions envisaged under Sub-rule (2) of Order XIV, Rule 2, C.P.C. On that ground alone, the order under attack has to be confirmed and the C.R.P. is liable to be dismissed.
In the result the C.R.P. fails and the same is dismissed.