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2003 DIGILAW 813 (PNJ)

Satish Kumar v. Lal Chand

2003-05-26

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Section 115 of the Code of Civil Procedure is directed against the order dated 12.3.2003 passed by the Additional Civil Judge (Senior Division), Kaithal, dismissing the application of the defendant-petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for brevity, the Code) in which prayer was made for treating the issue concerning deficiency of Court fee as a preliminary issue. 2. Brief facts of the case are that the plaintiff-respondent filed Civil Suit No. 68 of 2001 on 23.8.1999 and the issues including the valuation of the suit for the purpose of Court fee were framed on 18.6-2000. Both the parties were present at the time of framing the issues. The defendant-petitioner did not pray for treating the issue of Court fee as preliminary issue and the suit was fixed for the plaintiffs evidence. The statement of the plaintiff was recorded on 2.5.2003. However, the evidence could not be counted on account of the fault of the defendant-petitioner as has been observed by the Civil Judge by referring to order dated 2.5.2000 The application under Order VII Rule 11 of the Code was filed on 22.7.2002 when the case was fixed for remaining evidence of the plaintiff-respondent. The civil Judge has dismissed the application by observing that the purpose of filing the application is only to delay the proceedings on one pretext or the other and to harass the plaintiff-respondent. The stage for treating the issue with regard to payment of Court fee as preliminary issue has already gone and the case is fixed for evidence of the plaintiff-respondent. 3. Mr. Manjit Singh, learned counsel for the defendant-petitioner has argued that the issue with regard to Court fee is an issue, which must be treated as preliminary issue under Order Rule 11 of the Code and should be tried as such. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in Resham Lal and Ors. v. Anand Sarup and Anr., A.I.R. 1974 Punjab and Haryana 97 and argued that the issue with regard to the payment of Court fee must be tried as preliminary issue. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in Resham Lal and Ors. v. Anand Sarup and Anr., A.I.R. 1974 Punjab and Haryana 97 and argued that the issue with regard to the payment of Court fee must be tried as preliminary issue. The learned counsel has then relied upon a judgment of the Supreme Court in Samar Singh v. Kedar Nath and Ors., A.I.R. 1987 S.C. 1926 to argue that any issue can be treated as preliminary issue at any stage and there is no limitation grafted by Order VII Rule 11 of the Code. 4. I have thoughtfully considered the submission made by the learned counsel and do not feel persuaded to take a view different than the one taken by the Court below because Order VII Rule 11 read with Order XIV Rule 2 of the Code provides that the Court is to pronounce judgment on all issues. The provisions with regard to treating an issue as a preliminary issue are not mandatory. Order VII Rule 11 and Order XIV Rule 2 of the Code as amended upto date read as under :- Order VII 11. Rejection of plaint. The provisions with regard to treating an issue as a preliminary issue are not mandatory. Order VII Rule 11 and Order XIV Rule 2 of the Code as amended upto date read as under :- Order VII 11. Rejection of plaint. - The plaint shall be rejected in the following cases :- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate;] (f) where the plaintiff fails to comply with the provisions of Rule 9:] Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] Order XIV Settlement Of Issues And Determination Of Suit On Issues Of Law Or On Issues Agreed Upon [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. 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 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.] 5. If the provisions of Order XIV Rule 2 are examined along with the provisions of Order VII Rule 11 of the Code, then it becomes evident that this provision is no longer mandatory obliging the Court to dispose of the issue as a preliminary issue. The basic object of this provision appears to be to avoid unnecessary remand and retrial. It is well settled that if an issue is a mixed question of facts and law and would need adducing of evidence, then such an issue cannot be decided as a preliminary issue as has been held by this Court in Civil Revision No. 3405 of 1999, titled Jagdev Singh v. Sardarni Prem Parkash Kaur and Ors., (2001-2)131 P.L.R. 391 decided on 26.2.2002. It has become further clear that the party which was keen for treating the issue as a preliminary issue like the defendant-petitioner should have pleaded such an objection at the earliest stage. This proposition is supported by the view taken by the Allahabad High Court in the case of The Manager Bettiah Estate v. Sri Bhagwanti Saran Singh, A.I.R. 1993 Allahabad 2. 6. In the instant case, the objection with regard to treatment of payment of court fee has been raised with a prayer that the same may be treated as preliminary issue at a belated stage when the evidence of the party has already commenced. 6. In the instant case, the objection with regard to treatment of payment of court fee has been raised with a prayer that the same may be treated as preliminary issue at a belated stage when the evidence of the party has already commenced. It could not be successfully disputed by learned counsel for the defendant-petitioner that the suit is pending since 23.8.1999 and the issues were framed on 18.6.2000 in the presence of both the parties. The defendant-petitioner did not raise any objection for treatment of the issue concerning court fee as a preliminary issue. Therefore, once the evidence of the plaintiff-respondent has commenced, no useful purpose would be served, at this stage, by directing the Civil Judge to frame the issue concerning court fee as preliminary issue and after deciding the same, should decide other issues. Therefore, the instant petition is devoid of merit and is thus liable to be dismissed. 7. The judgment of this Court in Resham Lals case (supra) relied upon by the learned counsel would not require any detailed consideration for the simple reason that the aforementioned judgment did not take into consideration the amended provisions of Order XIV Rule 2 of the Code which is materially different after the amendment made in the Code of 1976. The non-obstante clause employed by Rule 2 of Order XIV of the Code and the use of word shall obliges the Court to pronounce judgment of all issues, subject of course to the, provisions of Rule 2 of Order XIV of the Code. AH the same, this is required to be done at the earliest stage. Therefore, the judgment in Resham Lals case (supra) would not be available to the defendant-petitioner. The reliance placed by the defendant-petitioner on the judgment of the Supreme Court in Samar Singhs case (supra) does not advance his case, where the Supreme Court was considering the effect of highlighting the defect in the election petition and pleading that the election petitioner had no cause of action. The argument rejected by the Supreme Court is that the objection was raised for deciding the case on the preliminary issue after the filing of the written statement or framing of issues. The argument rejected by the Supreme Court is that the objection was raised for deciding the case on the preliminary issue after the filing of the written statement or framing of issues. This judgment does not show that the objection can be raised even when the evidence has commenced as would be evident from the following paragraph on which reliance has been placed by the learned counsel :- "......If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the Code of Civil Procedure, If an election petition can be summarily rejected at the threshold of the proceeding we do not see any reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected under Order 7 Rule 11 and the court would be acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Courts power; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power at any stage. While it is true that ordinarily preliminary objection to the maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored. If the election petition does not disclose any cause of action, the respondents right to raise objection to the maintainability of the petition, or the Courts power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The Court would be acting within its jurisdiction in exercise of its power under Order 17 Rule II in rejecting the same even after settlement of issues." 8. The Court would be acting within its jurisdiction in exercise of its power under Order 17 Rule II in rejecting the same even after settlement of issues." 8. A perusal of the above paragraph shows that no evidence was recorded and in fact the argument advanced on behalf of the petitioner as reflected in paragraph 3 was that the court should have proceeded to record the evidence. I do not find that the aforementioned observations would govern the situation in the present case. Therefore, I have no hesitation in rejecting the argument raised by the learned counsel. For the reasons recorded above, this petition fails and the same is dismissed.