Punjab-Haryana High Court
Bhag Singh And Ors. vs Nek Singh And Ors. on 8 July, 1994
Equivalent citations: (1994)108PLR151
Author: R.P. Sethi
Bench: R.P. Sethi, J.S. Sidhu
JUDGMENT R.P. Sethi, J.
1. This appeal is directed against the judgment and decree passed by the learned Single Judge in Suit No. 3 of 1985 decided on September 23, 1985 by which while deciding issue No. 1, the suit filed by the appellants was dismissed. It is submitted that the judgment impugned in this appeal is against law and facts which is required to be set aside. It has been contended in the alternative that the civil Court had no jurisdiction to pass the orders dated January 5, 1979 and March 3, 1980 which were the subject matter of the preliminary issue.
2. So far as the plea regarding jurisdiction of the Civil Court is concerned, it is conceded that the said plea was neither pleaded in the plant nor made ground of attack in the memo of appeal. The argument of the learned counsel, though attractive on the face of it is without any basis. In a civil Suit, the parties cannot be permitted to go beyond their pleadings and in the absence of specific pleadings, the appellants are estopped from raising the plea which is claimed to be a plea of law only. The argument of the learned counsel that the plea raised is purely a question of law is not acceptable. Such a plea could not be decided without affording the parties opportunities to lead evidence. The plea being a mixed plea of law and fact cannot be permitted to be raised at this belated stage.
3. Some of the facts relevant for properly adjudicating the pleas raised in this appeal are that after the death of one Amar Singh his estate was mutated in the name of Bhag Singh and others. Hazura Singh being aggrieved by the mutation and claiming to be the adopted son of the deceased, Amar Singh, filed a suit for possession alleging that Bhag Singh and others were not the heirs of Amar Singh and he being the adopted son of the deceased was entitled to the possession of the property. A part of the land had been mortgaged vide two separate transactions. The mortgaged were also impleaded as parties and the suit was decreed. The judgment and decree of the trial Court was set aside by the first appellate Court and on appeal the High Court vide its judgment dated September 25, 1970, restored the judgment and decree of the trial Court on July 31,1959. Nek Singh and others who were successors in-interest of Hazura Singh filed application for the execution of the decree dated September 25, 1970 which was resisted by Jagta-Judgment debtor-on the ground that as a result of the consolidation in the village, the land of Amar Singh bad amalgamated with his holdings and khasra Nos. mentioned in the decree were no longer available, the decree was not executable. The Executing Court dismissed the objection and the appeal preferred was dismissed by the first appellate Court. The matter was agitated in execution second appeal No. 1806/1974 at the instance of the judgment-debtor. During the pendency of the aforesaid appeal, this Court passed an order on January 5, 1979 and when thereafter the matter went back to the executing Court, the objections raised were dismissed holding that the judgment-debtors were entitled to Rs. 275/- being the mortgage money. Instead of challenging the order of the executing Court dated March 3, 1980, the judgment -debtor filed a separate suit in which the aforesaid two orders were challenged on the ground that the Courts were not competent to pass the orders and as the orders were challenged on the ground that the Courts were not competent to pass the orders and as the orders were with out jurisdiction, the rights of the plaintiff-appellant could not be adversely affect4d. On die pleadings of the parties, issues were framed on September 24,1980. The respondents filed an application for treating issue No. 1 as a preliminary issued which was dismissed by the trial Court; The appellants thereafter filed Civil Revision No. 753 of 1985 in this Court which was disposed of vide order impugned in this appeal transferring the suit itself to the files of the High Court.
4. It is unfortunate that the litigation which was initiated about four decades back was dealt with casually, without reference to the provisions of law and the orders earlier passed in the suit. It appears that the learned single Judge presumed that issue No. 1 framed in the suit was a preliminary issue and while deciding the revision petition filed against the orders of the trial Court rejecting the application of the defendants, the judgment impugned was passed treating the aforesaid issue as a preliminary issue.
5. The order impugned in this appeal in fact is a composite order by which the, revision petition filed by the respondents was allowed and consequently the preliminary issue was decided against the appellants. It is true that the order passed in revision petition cannot be made a subject matter of appeal under the LPA. However, it is equally true that the order passed by the learned Single Judge deciding issue-1 against the appellants in exercise of his powers in the suit on original side is appealable. As both-the orders are inseparable, the LPA is competent.
6. Preliminary issue is defined under Order 14 Rule 2(2) of the CPC to mean that issue which involves only question of law and such question of law should pertain to the jurisdiction of the Court. An Order under Order 14 Rule 2 can be corrected in exercise of the revisional power only if it is found to be erroneous and not otherwise. The learned Single Judge dealt with this matter and held:-
" In my opinion, the aforesaid contention is not relevant in view of the tact fact the reason given for treating the order of the fact that the reason given for treating the order of this court and of the executing court passed in the waked the said High Court judgment as being without jurisdiction, is that these orders tantamount to be judgment and decree of redemption of mortgage as by these orders the possession of land under mortgage as was ordered to be delivered to decree holders on payment of the mortgage amounts, which the given courts, while executing the decree, cannot pass. So, the primary question that the trial Court had to address itself to, was as to whether the judgment of this court and the order of the executing court amounted to decree of redemption. In deciding that question, no evidence was required to be produced or gone into as would be presently shown."
The learned Single Judge, however, did not hold that findings of the Court below rejecting the application for treating the aforesaid issue as a preliminary issue was either erroneous or without jurisdiction. After the transfer of the suit to the files of the High Court, the learned Single Judge had become the successor Court of the trial Court and was bound by the earlier orders passed in the case. The learned Single Judge without deciding the contention raised by the learned counsel for the appellants that the issue could not be tried as a preliminary issue, assumed the said issue to be a preliminary issue and decided the same in exercise of his original powers in the regular suit. A perusal of the issue would show that the same could not have been decided without affording the parties opportunities to lead evidence as was rightly held by the trial Court. Without giving a finding that the issue involved a pure question of law, the learned Single Judge was not justified in treating the issue as a preliminary issue and deriding the same without affording the appellants an opportunity to lead evidence in support of their contentions. The learned Single Judge while deciding the aforesaid issue appears to have taken note of various facts which were disputed and could not have been made a basis without affording the parties opportunities to lead evidence and proving their rival contentions. In any case, the judgment passed by the learned ! Single Judge cannot be sustained which is liable to be set aside. Accordingly the , appeal is accepted and the judgment and decree impugned is set aside, with the direction that the issue framed be treated to be a mixed issue of fact and law.
7. After going through the pleadings in the case, we are of the opinion that no useful purpose will be served by directing the trial of the suit in this court particularly when no complicated question of law is involved in the matter. The original suit is directed to be transferred to the Court of Senior Sub Judge, Patiala, for disposal according to law. The counsel for the appellants has been directed to appeal or cause the appearance of his clients in the transferee Court on August 16,1994.