Allahabad High Court
The Manager, Bettiah Estate vs Sri Bhagwati Saran Singh And Others on 27 March, 1992
Equivalent citations: AIR1993ALL2, AIR 1993 ALLAHABAD 2, 1993 ALL. L. J. 49, 1992 (20) ALL LR 969, (1992) 2 ALL WC 1233
ORDER N.N. Mithal, J.
1. The suit of the plaintiff having been dismissed on prelimi nary issues he has come up in appeal before this Court.
2. The two main submissions of the appellant are that the trial court has erred in deciding these issues as preliminary issues which ought to have been left for decision after the entire evidence had been recorded along with remaining issues and that even while deciding the issues as preliminary issues the court had erred in not confining itself to the legal aspect of these issues by also entering into the merits of factual controversy.
3. To appreciate the controversy it would be necessary to first have the background facts leading to the suit. In the State of Bihar a large Estate known as Bettiah Estate was put under the management of the Court of Wards because its last owner Rani Janki Kunwar was said to be of unsound mind. On her death disputes arose about the succession to the property and a large number of claimants filed suits claiming succession to the estate. All these suits were ultimately disposed of by the Supreme Court by its decision reported in AIR 1983 SC 864 (sic) whereby all the suits by the various claimants were dismissed. The Court however, left it open to the State of Bihar to consider whether the estate had escheated to the State of Bihar. It was at this stage that suit No. 335/83 was filed by defendant No. 1 impleading his own father as defendant No. 1 and the court of wards Bihar and Gorakhpur as pro forma defendants Nos. 2 and 3. The defendant No. 1 initially filed the written statement but thereafter withdrew from the contest. The pro forma defendants also did not contest the suit as a result whereof the suit was decreed ex parte. Attempts were then made by the court of wards Bihar and the Collector Gorakhpur to have the ex parte decree set aside but their applications were dismissed and at present First Appeal From Orders are pending in this Court against those orders. Admittedly that aspect of the matter has not yet become final.
4. The manager Bettiah Estate subsequently filed a suit No. 140 of 1984 seeking inter alia the relief of declaration that the decree obtained by the defendant No. 1 in suit No. 335 of 1983 was null and void and it was not binding on the plaintiff. Some other reliefs also have been claimed including the relief of possession over one of the properties situate within the State of U.P. The trial Court framed as many as 11 issues on the pleadings of the parties but by the impugned order it has disposed of issues Nos. 4, 5 and 6 as preliminary issues, all of which have been decided against the plaintiff. In the light of the findings on these issues the suit of the plaintiff has been dismissed which has occasioned the filing of this First Appeal.
5. Order 14 Rule 2 of the Code as it stood prior to the Amendment 1976 was as under:
"Where issues both of law and facts arise in the same suit, and the Court is of the opinion that the case of 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 issues of fact until after issues of law have been determined."
6. The Supreme Court in the case of 8. S. Khanna v. Brig. F. J. Dillon while interpreting the said rule expressed itself in these words:--
"Under O. XIV R. 2 of Civil P.C. where issues both of law and of fact arise in the same suit, and the Court is of the 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 issues of law have been determined. The jurisdiction of the Court to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the. Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop sided trial of the suit."
7. In view of the language employed in R. 2 before 1976 amendment all issues of law going to the root of the case and capable of being decided without the necessity of recording evidence were mandated to be tried by the court first. Even where the decision of issue of law obviated the adducing of evidence by the parties the Court was bound to deal with that issue in the first instance. On the then existing provisions the consistant view expressed by the Court was that where questions only of law or law mixed with facts arise in a case and the decision thereof, in the opinion of the Court may result in the disposal of the suit itself, the same ought to be decided first. But when the pure question of law is raised but its decision was not likely to result in the disposal of the suit it was not necessary to decide such an issue as preliminary one and must await the stage of final decision. Similarly where the question of law raised was such which is mixed with fact and on those facts independent issues have been raised for trial, the decision of such issue must necessarily be postponed for final decision.
8. It appears that in view of the decision of the Supreme Court in the case of S. S. Khanna the Parliament thought it fit to bring it in line with the views expressed by the Supreme Court. Accordingly R. 2 was re-cast as under:--
"2. Court to pronounce judgment on all issues:
(i) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce the judgment on all issues.
(ii) Where issues both of law and fact arise in the same suit, and the court is of the 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 other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
9. From the perusal of the amended provision of Rule 2 it will be clearly seen that now there are only two categories of issues which can be decided as preliminary issues.
Those issues of law as relate to (a) jurisdiction, of the Court or (b) to the bar to the suit created by any law for the time being in force. Apart from the above no other issue can now be decided as preliminary, a fortiori no issue of fact or a mixed issue of fact and law can be, decided as preliminary issue and consequently such issues must be left to be decided along with the rest of the issues. The object of this obviously is avoidance of piecemeal trial and abridging protracted litigation.
10. On comparison of the earlier rule and the present one will indicate that previously the categorisation was between issue of law and fact only and it was mandatory for the court to decide all issues of law in the first instance. On the contrary under the amended rule the mandate to the Court is to pronounce the judgment on all the issues raised subject to the provision of sub-rule (2), notwithstanding the fact that the disposal of one preliminary issue may result in the disposal of the whole suit. The only exception carved out by sub-rule (2) is to confer discretion upon the Court that it may dispose of an issue of law as a preliminary issue if, in its opinion, it can dispose of the whole suit subject to further limitation that the issue of law must either be as to the jurisdiction of the Court or as to the bar of any law to the suit. The use of expression "on issue of law only" has its own significance which cannot be ignored. Amended provision has thus drastically changed the earlier notion that all issues of law have to be disposed of at the initial stage-before the trial. Now the Courts power to dispose of an issue of law as preliminary issue has been considerably restricted.
11. The rule however, does not give any arbitrary or unbridled power to the Court. The discretion in this regard has to be exercised in a judicious manner. In fact the discretion to try a preliminary issue of law relating to jurisdiction or bar to the suit should be exercised only when it is so clear that the decision will dispose of the suit finally and once for all without the necessity of recording any evidence. If there be any necessity to refer to any authority on the question it will suffice to mention AIR 1980 Delhi, 122, Oriental Travels Pvt. Ltd. v. State Transport Authority and AIR 1979 MP 153.
12. To sum up the legal position appears to us to be as under:
Only an issue of law can be decided as a preliminary only where it is such that its decision does not necessitate investigation into facts and it relates either to the jurisdiction of the Court or to the suit being barred under any prevailing law, and that, in the opinion of the court the decision of the issue will, result in the decision of the whole or a part of the suit. The discretion in this regard must always be exercised on the basis of sound judicial principles. It may however, be made clear that even if an issue of law can be decided as a preliminary issue as aforesaid the Court is not always bound to decide it as a preliminary issue and can in its discretion, postpone its decision also along with other issues whether of law or fact. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof.
13. This being the legal position we may now proceed to examine whether the trial court has acted in accordance with law while disposing of issues Nos. 4,5 and 6 as preliminary issues. However, before doing so we may look back at few more facts in brief.
14. After the decision of the Supreme Court in respect of Bettiah Estate the defendant No. 1 obtained an ex parte decree in a Civil Suit No. 335 of 1983 from the Court of Second Additional Civil Judge, Varanasi. The present appellant then filed suit No. 140 84 praying for a declaration that the aforesaid ex parte decree was null and void and hence un-enforceable against the appellant. The main ground of attack was that the ex parte decree had been obtained by practising fraud on the court and through collusion and misrepresentation on the grounds mentioned in paragraph 19 of the plaint. In the written statement one of the pleas raised was that the suit was not maintainable. The grounds were that the appellant was all along aware of the pendency of the suit and had even participated in the same. Besides this the application for setting aside the ex parte decree having already been dismissed the suit was not maintainable. It is significant to notice that none of the pleas in the written statement challenged the jurisdiction of the Court.
15. Here we also consider it relevant to mention that when issues were framed on 23-2-1989 the Court had directed that issue No. 4 would be decided first on 2-3-1989. On the postponed date i.e. on 9-3-1989 the court passed a fairly detailed order on plaintiffs application for recalling an order admitting certain documents filed by the defendant. In the concluding portion of that order the court passed a modified order that issues Nos. 4 and 6 both will be decided first on 10-3-1989. Issue No. 6 was added at the instance of the defendant and plaintiffs' silence was taken as consent. On the date fixed these issues could not be disposed of and the matter remained pending for quite some time. Subsequently the court fixed 14-9-1990 for the disposal of issues Nos. 3, 4, 5, 6 and 7. By the impugned order the trial court has disposed of only issues Nos. 4, 5 and 6 and issue No. 7 was left undecided.
16. The narration of above facts makes it clear that issues Nos. 5, 6 and 7 have been added amongst the preliminary issues without the consent of the parties. The order sheet is also silent as to how and under what circumstances the court found it necessary to conclude that these issues be also disposed of at the initial stage. We find it strange that this should have happened unless we were to presume that the court had failed to look into its earlier orders. It is all the more surprising that at the relevant time the court should omit one of them undecided, without assigning any reason.
17. We are aware that many a times the trial court has to work under great pressure and stress due to heavy pendency and paucity of time, yet we do not quite appreciate this kind of lackadaisical approach in the trial of the suit. When the parties are hotly contesting the case and the file has swollen in size it is always advisable that the trial court should periodically examine the whole file, particularly the order sheet, and to summarise, the history of the case touching upon every relevant aspect concisely. This can be done as often as may be required looking to the bulk of the file and the nature of contest in the suit. This will help the trial court in concentrating only on the relevant matters and will also avoid any possibility of omitting any vital fact relevant to the controversy. It must always be ensured that no application should remain undisposed of before a recording of the evidence begins. We can only restate that the court is expected to be vigilant in this respect.
18. Turning to the three issues that have been disposed of by the trial court as preliminary issues we may point out that none of them deserved to be decided as preliminary issue. As already explained earlier none of the issues related to the jurisdiction of the court, or to the bar of any existing law. How then the court proceeded under O. 14 R. 2 in disposing of these issues as preliminary issues? It is urged that under O. XV R. 3 also the court has the power to decide the suit on a preliminary issue. We may point out that O. XV only empowers the court to proceed to dispose of the suit on an issue of law or fact if that could be done forthwith without the need of any further evidence or argument but only with the consent of parties.
19. Shorn of irrelevant portions R. 3 would read thus:
"(1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, it the finding thereon is sufficient for the decision, may pronounce judgment accordingly....."
20. Action under this rule can, therefore, be taken immediately after framing of issues and it cannot be pressed into service subsequently, unlike the instant case. Learned counsel for the respondent has not been able to satisfy us that any of the issues which have been decided as preliminary issue by the trial court, could be decided as such within the meaning of 0.14 R. 2 C.P.C.
21. Learned counsel for the parties had also addressed us in detail about merits of each of those issue but we are purposely refraining from expressing any opinion on merits of these issues lest it may prejudice the rights of the parties at the trial. We only consider it necessary to mention that when deciding an issue as a preliminary issue any reference to factual aspect pertaining to that issue would be irrelevant if, the parties are at variance as to true facts. When an issue is decided as preliminary issue the court must confine itself to the issue raised in the plead ings and should not enter into the factual controversy behind the said issue which un fortunately has been done in the instant case.
There was no clear plea in defence as to why the suit was not maintainable. No law has cited which barred the suit. In these circum stances issues could not have been decided as preliminary issues.
22. Since we are of the view that the power of the court to decide an issue of law as a preliminary issue is very limited and confined to two categories only as already mentioned earlier we are of the view that trial court has erred in law and exceeded Us jurisdiction in deciding issues Nos. 4,5 and 6 as preliminary issues. When the said issues could not be decided as preliminary issues any finding given by the court without giving any opportunity to the parties to lead evidence would be un-sustainable. The court should have awaited trial of all the issues before proceeding to pronounce the judgment disposing of the suit finally.
23. In view of what we have said above we hold that the trial court has erred in deciding the suit on preliminary issues alone and hence the judgment and decree under appeal cannot be sustained.
24. Since the litigation has a long history behind it, and the present suit also has been pending for well over eight years, we are of the opinion that the trial court should decide the suit expeditiously. The trial court will, therefore, endeavour to have the pleading clarified and finalise the issues or recast them if necessary, before 31-7-1992 positively. The parties should thereafter, complete their oral evidence within three months and the suit should be decided by 31st Dec. 1992. We are sure that the parties and their counsel will extend their fullest cooperation in the task of the trial court in maintaining the time schedule fixed by us.
25. The appeal is accordingly allowed, the judgment and decree of the trial court is set aside and the matter is remanded to the trial court. The trial court will now dispose of the entire suit after parties have lead their evidence on all the issues, including fresh decision on issues 4, 5 and 6 also. Since the plaintiff has succeeded in this appeal only on a technical ground we are of the opinion that ends of justice will be met if the plaintiff is awarded only half the costs in this appeal. We also wish to make it clear that if any opinion may have been expressed by us on the merits of any of the issues involved, the same is only tentative and may not be taken as decisive of the matter and the trial court will be free to decide the same on merits on the basis of the evidence then before it without in any way being swayed or prejudiced by any thing which we might have observed on the merits of these issues.
The appeal is allowed as above.
26. Appeal allowed.