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2001 DIGILAW 501 (PNJ)

Scorpios International v. Saraf Agencies Ltd.

2001-05-04

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - Scorpios International brought a suit for possession by way of specific performance of an agreement and for declaration in respect of the property in dispute. It was contested by the defendants. The trial Court framed certain issues arising from the pleading of the parties. One of the issues relates to the maintainability of the suit. It reads as under : "Issue No. 4 : Whether the present suit is hit by the provisions of Order 2 Rule 2 CPC ? OPD" 2. The defendant moved an application for treating the issue No. 4 as preliminary issue. It was allowed by the learned Civil Judge (Senior Division) Faridabad on January 16, 2001. This order is, therefore, under challenge in this revision. 3. I have heard Shri I.K. Mehta, learned Counsel for the petitioner and Shri Rajive Bhalla, learned Counsel for the respondents. 4. Mr. I.K. Mehta, learned Counsel for the petitioner has assailed the impugned order mainly on the ground that the plea covered under Issue No. 4 cannot be decided independently because it is dependent upon evidence. It being mixed question of law and fact, requires to be dealt with along with other issues. On the day when the issues were framed, the defendant was unable to raise any objection that Issue No. 4 may be treated as preliminarily. In fact, issues were framed on August 8, 1999. The case was adjourned for evidence of the plaintiff on different dates. 5. It is an admitted fact that earlier, the plaintiff had filed a suit. The present one is a subsequent suit for specific performance of the agreement and for declaration. Copy of the judgment is already on record. Thus, according to the defendants when the plaintiff has admitted the issue in respect of certain claims, he cannot be allowed to raise the claim later on in a subsequent suit which he has already relinquished in the earlier one. Therefore, the subsequent suit is hit by Order 2 Rule 2 CPC and under Order 14 Rule 2 CPC, it cannot be treated as preliminary issue because where the issues both of law and fact arise in the same suit and the case can be disposed of on an issue of law only, therefore, it can be treated as preliminary issue. Rule 2 Order 2, CPC reads as under : "2. Suit to include the whole claim. Rule 2 Order 2, CPC reads as under : "2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation. - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." Order 14 Rule 2(2) CPC provides as under :- "(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." 6. There is no dispute to the proposition of law that before amendment of the Code of Civil Procedure, it was mandatory for the Court to try the issues of law in the first instance and to postpone settlement of the issues of fact only after the issues of law have been determined, but now the word "shall" has been substituted by the word "may", thus giving discretion to the court that when issues both of law and fact arise in the same suit and the Court is of the opinion that the suit or any part thereof may be disposed of on an issue of law only, it may try that issue first (a) if that issue relates to the jurisdiction of the court, or (b) a bar to the suit created by law for the time being in force. In the given case in hand, the objection is to the maintainability of the suit under Order 2 Rule 2 CPC, therefore, on this analogy, the trial Court has treated issue No. 4 as preliminary. 7. Mr. Mehta, learned Counsel for the petitioner, to support his argument that issue No. 4 cannot be treated as preliminary issue as it is a mixed question of law and fact, has placed reliance on Hardwari Lal v. Pohkar Mal and others, AIR 1978 P&H 230, Daljit Singh v. Joginder Singh Sekhon, AIR 1985 P&H 184 and Ramkali and others v. Sohan Lal, 1984 PLJ 600. 8. In Hardwari Lals case (supra), one of the issues related to the proper valuation of the suit for the purpose of jurisdiction of the Court. The trial Court refused to treat it a preliminary issue. It was observed that where the issue of determination of valuation of property requires the determination of market value, the same could not be treated as a preliminary issue. As a consequence, in view of the discretion vested in the Court in the matter of trial of an issue as a preliminary issue under amended Order 14 Rule 2, the order refusing to try the issue of valuation of suit as a preliminary issue could not be interfered with in exercise of revisional powers under amended Section 115. 9. As a consequence, in view of the discretion vested in the Court in the matter of trial of an issue as a preliminary issue under amended Order 14 Rule 2, the order refusing to try the issue of valuation of suit as a preliminary issue could not be interfered with in exercise of revisional powers under amended Section 115. 9. In Daljit Singhs case (supra), it has been held that : "The jurisdiction 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 issue 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." Issue of law has not been defined in the Code. Normally if answer to an issue is determinable 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 ceases to be an issue of law. Under the old rule all the 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. However, there is no discretion with the Court to treat issues which are mixed questions of law and fact as preliminary issues. In this regard, reference has been made to S.S. Khanna v. F.J. Dhillon, AIR 1964 S.C. 497, wherein the Honble Supreme Court observed as under : "Under Order 14 Rule 2 Code of Civil Procedure 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 the issues of law only, it shall try those issues first and for that purpose, may, if it thinks fit, postpone settlement of the issues of fact only after the issues of law have been determined. The jurisdiction 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 Order 14 Rule 2 CPC confers no jurisdiction upon the Court to try a suit on a 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 would be when the decision of issues even of law, depends upon the decision of issues of fact would result in a lop-sided trial of the suit." 10. In order to meet the argument whether issue in question can be treated as preliminary issue, Mr. Rajive Bhalla placed reliance on Meharban and another v. Punjab Wakf Board, Ambala Cantt. and another, 1998(2) PLR 446 : 1998(1) PLJ 640 to contend that where the issue relates to either the jurisdiction of the Court or bar to the suit created by any law for the time being in force, that issue can be treated as preliminary issue. 11. Mr. Rajive Bhalla, learned Counsel for the respondent, on the other hand, has raised objection to the maintainability of the revision. The extent of revisional powers of this Court is restricted under Section 115 of the Code and to support his argument, he has placed reliance on Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966 S.C. 153. It is held :- "That the High Court cannot while exercising its jurisdiction under Section 115, correct errors of fact, however, gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the court to try the dispute itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked." 12. It is well settled that where the trial Court has exercised the jurisdiction in accordance with law, the High Court should not exercise its revisional jurisdiction under Section 115 of the Code. It is well settled that where the trial Court has exercised the jurisdiction in accordance with law, the High Court should not exercise its revisional jurisdiction under Section 115 of the Code. But in the given case in hand, the order treating issue No. 4 as preliminary is not within the parameters of the jurisdiction vested in it and, therefore, this Court can interfere with the order passed by the trial Court while exercising its revisional jurisdiction under Section 115 of the Code. 13. Before considering the fact whether issue No. 1 can be treated as preliminary issue, it would be appropriate if reference to other issues framed by the trial Court is also made. These are as under : "(1) Whether the plaintiff has entered into agreement to sell dated 7.7.1994/18.7.1994 as alleged ? OPP (2) Whether the plaintiff has paid Rs. 5,000/- as token money on 7.7.1994 to the defendant No. 1 and Rs. 2 lacs to defendant Nos. 1 and 2 on 18.7.1994 as alleged ? If so its effect ? OPP (3) Whether the plaintiff is still ready and willing to perform his part of contract, as alleged ? OPP (4) Whether the suit of the plaintiff is hit by the provisions of Order 2 Rule 2 of CPC ? OPD (5) Whether the suit is bad for mis-joinder and non-joinder of the parties, as alleged ? OPD (6) Whether the suit of the plaintiff is barred by principle of res judicata as alleged ? OPD (7) Whether the defendant No. 2 was not competent to enter into agreement to sell the immovable property of defendant No. 1 as alleged, if so, its effect ? OPD (8) Whether the plaintiff has no cause of action to file the present suit ? OPD (9) Whether the plaintiff has not verified the plaint in accordance with law, if so its effect ? OPD (10) Relief." 14. Issue No. 6 appears to have been framed on the basis of certain objections raised that the suit is barred by principle of res judicata. Similarly issue No. 8 relates to the cause of action. If no evidence is required to be led on issue No. 8 that he has no cause of action, even then issue No. 4, which is being treated as preliminary issue could be decided along with other issues. Similarly issue No. 8 relates to the cause of action. If no evidence is required to be led on issue No. 8 that he has no cause of action, even then issue No. 4, which is being treated as preliminary issue could be decided along with other issues. It was, therefore, not in the interest of justice for the parties to lead evidence at intermediate stages, firstly on preliminary issue and then on issue of merit, as observed in Anjini Devi and others v. M/s. T. Industries Ltd., 1996(3) PLR (Delhi Section) 21. 15. From the impugned order, it is abundantly clear that the pleadings in the first case were not produced on record. In case those were produced, then the same would have been discussed in the order. Unless the decision is made clear by indicating the pleadings of the previous suit, it cannot be assumed whether the plaintiff had relinquished part of his claim and for that reason, the suit is barred under Order 2 Rule 2 CPC. 16. In view of the aforesaid, I am of the view that the trial Court was in error in treating issue No. 4 as preliminary issue at this belated stage when on certain dates the case is being adjourned for plaintiffs evidence. It is evident from the above that the issues which involve issues of law and fact cannot be treated as preliminary issues. The above observations are applicable even after coming into force of the amended rule. In the given case in hand, issue No. 4 requires to be decided on the strength of evidence to be led by the parties, therefore, the trial Court was in error in allowing application. 17. This civil revision is, therefore, allowed. The impugned order is set aside. Petition allowed.