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2001 DIGILAW 305 (ALL)

Gauresh Ahuja v. Pushpa Sachdeva

2001-03-30

B.K.RATHI

body2001
JUDGMENT : - B.K. Rathi, J. This revision has been preferred against the order dated 17-7-2000 passed by 1st Additional Civil Judge (Senior Division), Allahabad in Suit No. 340 of 1999. The fact giving rise to this revision are as follows: The opposite party No. 1 filed a suit for declaration of her rights in Bungalow No. 28-A, Muir Road, Allahabad, Royal Hotel, Allahabad and other buildings and shops and moveable and Immovable properties and also for permanent injunction. The suit was contested by the revisionist and he claimed the ownership of these properties. Ten issues were framed in this case on 8-5- 2000. It was ordered on that date that issue Nos. 2,5,6 and 7 shall he disposed of on 19-5-2000. Later on 17-7-2000 it was ordered by the successor of the Presiding Officer on various applications moved by the parties that issue No. 5 shall be disposed of on 27-7-2000 and other issues shall be disposed of alongwith suit. Aggrieved by this order, the present revision has been preferred. 2. I have heard Sri G. N. Verma, learned Counsel for the revisionist and Sri Ajit Kumar, learned Counsel for the opposite party No. 1. It has been argued by Sri G. N. Verma, learned Counsel for the revisionist that the order dated 8-5- 2000 was passed by predecessor of the present Presiding Officer for deciding issue Nos. 2,5,6 and 7 as preliminary issues. That this order could not have been reviewed by the successor of the Presiding Officer. That no ground for review has been made out as has been mentioned in Order XLVII, CPC. It is further contended that the order passed at one stage of the suit operate as res judicata at subsequent stages of the same suit or proceedings. The impugned order, therefore, could not have been passed. Learned Counsel in support of the argument has referred to AIR 1964 SC 993 , Arjun Singh v. Mohindra Kumar and others and AIR 1977 SC 392 , Y B. Patil and others v. Y, L. Patil. In these cases it has been held that order passed at one stage of the suit operate as res judicata for subsequent stages of the proceedings. On the basis of these decisions, it has been argued that the impugned order of the trial Court is without jurisdiction and is fit to be set aside. 3. In these cases it has been held that order passed at one stage of the suit operate as res judicata for subsequent stages of the proceedings. On the basis of these decisions, it has been argued that the impugned order of the trial Court is without jurisdiction and is fit to be set aside. 3. THE second argument of the learned Counsel for the revisionist is that in Para 23 of the written statement it was Steadied that the plaint and vakalatnatna as also not been signed and verified by Smt. Pushpa Sachdeva. That, no issue has been framed on this point. That issue on this point should have been framed and that issue should also be decided as a preliminary issue. It has been argued that it is necessary that the said issue should be decided as preliminary case for the reason that in case it is found that the plaint and vakalatnama has not been signed by the sole plaintiff the entire suit will fail and evidence and decision on other issues will not be required. 4. AS against this, the argument of the learned Counsel for the opposite party No. 1 is that the impugned order does not amount to the review of the earlier order. That fixing a case for disposal of particular matter does not amount to a decision which may operate as res judicata between the parties. That there is no decision on any point which may operate as res judicata. Learned Counsel has also argued that only the issues that are mentioned in the Rule 2 of Order XIV, CPC can be decided as preliminary issues. Reference has been made on Clause (2), which reads as follows: " (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 issues 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. " That therefore, the issue Nos. 2,6 and 7 cannot be decided as preliminary issues. 5. I have considered the arguments of the learned Counsel. By order dated 8-5-2000 issue Nos. 2,5,6 and 7 were fixed for disposal on 15-5-2000. " That therefore, the issue Nos. 2,6 and 7 cannot be decided as preliminary issues. 5. I have considered the arguments of the learned Counsel. By order dated 8-5-2000 issue Nos. 2,5,6 and 7 were fixed for disposal on 15-5-2000. These issues are: No. 2 : Whether the decision in suit No. 1/91 of the High Court dated 10-2-1998 operate as legal estoppel and the suit is barred by res judicata. No. 5: Whether the Court fee paid is insufficient. No. 6: Whether the suit is barred by Section 10, CP. C. No. 7 : Whether the Court has no jurisdiction to hear the suit in view of Section 331 of Z. A. and L. R. Act. 6. OUT of these issues by the impugned order the trial Court has directed that the issue No. 5 shall be disposed of as preliminary issue. Therefore, so far as this part of the order the earlier order has not been changed and this order has not been challenged. This is an issue of law and should be decided as preliminary issue. The issue No. 6 "whether the suit is barred by Section 10 C. P. C. " does not appear to have been framed properly. Section 10, C. P. C. does not bar a suit. It only provide for the stay of suit. Therefore, this issue should be framed as "whether the suit is liable to be stayed under Section 10, C. P. C. " 7. AS regard this issue the purpose of the issue will frustrate if this issue is decided with other issues. Therefore, whether the suit is liable to be stayed under Section 10, CPC should also be decided as preliminary issue. This issue is also purely legal and does not require any oral evidence for decision, the trial Court, therefore, has erred in not deciding this issue as a preliminary issue. There is no purpose of this issue if it is not decided as preliminary issues. 8. AS regard the issue Nos. 5 and 7 as mentioned above, these are mixed issues of facts and of the law and evidence is required for their decisions. Therefore, ac cording to the above rule these issues can not be decided as preliminary issues. The party will be required to produce evidence for the decision of these issues. 8. AS regard the issue Nos. 5 and 7 as mentioned above, these are mixed issues of facts and of the law and evidence is required for their decisions. Therefore, ac cording to the above rule these issues can not be decided as preliminary issues. The party will be required to produce evidence for the decision of these issues. Therefore, the first contention of the learned Counsel that the trial Court has erred in reviewing the earlier order dated 8-5-2000 is not correct. As the order fixing a case for disposal of the particular matter does not amount to the deciding of a point and can not operate as res judicata at subsequent stages of the proceedings. Contrary arguments of the learned Counsel is totally misconceived and the case law referred to has no application. The provisions of Order XLVII, CPC also does not apply. The earlier order dated 8-5-2000 has not been reviewed. 9. THE other contention of the learned Counsel for the revisionist is accepted to the extent that issue No. 6 should be re-framed as mentioned above and both issue Nos. 5 and 6 should be decided as preliminary issues. However, issue No. 5 should be decided first and in case the Court fee paid is found sufficient, or sufficient Court fee have been paid in accordance with the findings on this issue, the issue No. 6 shall then also be decided as preliminary issue before recording the oral evidence on other issues. 10. NOW coming to the second contention. A perusal of para 23 of the written statement show that it has been pleaded that the plaint has not been signed and verified by the plaintiff herself nor she has signed the vakalatnama. Therefore, it is also necessary to frame an issue on this point. The trial Court shall also frame an issue on this point. Therefore, an issue regarding this fact shall also be framed by the trial Court and the said issue shall also be disposed of after the evidence of the parties on the issue expediently. The revision is accordingly disposed of. The parties are directed to bear their own costs of this revision. Revision disposed of.