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2006 DIGILAW 558 (CAL)

DIPAK KUMAR BHATTACHARJEE v. ARCHANA SAHA

2006-09-01

ARUN KUMAR MITRA, KISHORE KUMAR PRASAD

body2006
KISHORE KUMAR PRASAD, J. ( 1 ) IN this appeal, the Order No. 27 dated 12. 2. 2002 passed by shri A. Mukherjee learned Judge, 10th Bench, City Civil Court Calcutta, in title suit No. 1398 of 1998 is assailed by the appellants. The appellants herein had filed the aforesaid suit for declaration that the sale deed executed by the defendant no. 1 in respect of the suit premised is null and void, for a further declaration that the sale deed dated 29. 11. 1997 be delivered up and cancelled and permanent injunction. By the impugned order, issue No. 1 was taken up as preliminary issue by the learned Trial Judge on the date of peremptory hearing of the case and the said issue was about the maintainability of the suit. The learned Trial judge after hearing the learned lawyer appearing for the parties had dismissed the aforesaid suit on the ground that it was not maintainable. ( 2 ) EVEN though the learned Counsel for the respondents-has not cared to put in appearance on the date of hearing the instant appeal before this Court despite service, we have heard the learned Counsel appearing for the appellants and gone through the records carefully. ( 3 ) LEARNED Counsel for the appellants contended that after the amendment of Civil Procedure Code, the provision of Order 14 Rule 2 has undergone a change and under the amended provision of Order 14 Rule 2 Sub-rule (2), the said issue could not have been decided by the learned Trial Judge as preliminary issue when the said issue was an issue involving mixed question of fact and law required to be decided on merits along with other issues in the suit. Learned Counsel for the appellants also contended that after the amendment of the provision of Order 14 Rule 2 of the Code of Civil Procedure, further limitation have been imposed and an issue involving question of law should be tried as preliminary issue only after the condition indicated in Sub-rule (2) of order 14 of Rule 2 are fulfilled. Placing reliance on the principles laid down by the Full Bench of Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai and Ors. Placing reliance on the principles laid down by the Full Bench of Madras High Court in the case of Muppudathi Pillai v. Krishnaswami Pillai and Ors. , AIR 1960 Madras page 1, learned Counsel for the appellants lastly contended that the learned Trial Court erred in holding that in view of Section 34 of the Specific Relief Act, the appellants not being a party to the deed is precluded from making a decree for cancellation of sale deed executed by and between the respondent Nos. 1 and 2. Learned Counsel laid stress on the observations of the aforesaid Full Bench decision in paragraphs 13,14 and 15 which are quoted herein below: -" (13) Whitley Stokes in the Anglo Indian Codes, Vol. 1, dealing with Ch. V of the Specific Relief Act states at page 984 as follows: -"chapter V declares that any person against whom a written instrument is void or voidable, who has reasonable apprehension that if left outstanding it may cause him serious injury may obtain an adjudication that it is void or voidable and an order that it be delivered up and cancelled. The relief extends to a forged instrument, and also to one originally valid but which has subsequently become forged. The chapter applies to cases nor infrequent in India, where a party gets possession of a document, on which he might not indeed be able to found a claim in a Court of justice, but which might give him such prima facie right against the other as would expose him to vexatious demands and litigation. "the learned author points out that Section 89 of the Specific Relief Act was taken for the most part from the Draft New York Civil Code, Articles 1906 and 1908. That principle has been set out in story on Equity Jurisprudence, english Edn. 1920 in Article 694 thus:" It is obvious that the jurisdiction, exercised in cases of this sort, is founded upon the administration of a protective or preventive justice. If, therefore, the instrument was void for matter apparent upon the face of it, there was no call to exercise the jurisdiction, with the possible exception of instruments forming a cloud upon the title to land. If, therefore, the instrument was void for matter apparent upon the face of it, there was no call to exercise the jurisdiction, with the possible exception of instruments forming a cloud upon the title to land. The party is relieved upon the principle, as it is technically called quia time, a that is, for fear that such agreements, securities, deeds, or other instruments may be vexatiously or injuriously used against him, when the evidence to impeach them may be lost, or that they may now throw a cloud or suspicion over his title or interest. The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument: (1) the instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case the Court considers it proper to grant this relief of preventive justice. On the third aspect of the question the English and American authorities hold that where the document is void on its face the Court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the Court. " (14) The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party, asserting hostile title creates a document. Thus relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title". " (15) Let us take an example of a trespasser purporting to convey the property in his own right and not in the right of the owner. " (15) Let us take an example of a trespasser purporting to convey the property in his own right and not in the right of the owner. In such a case a mere cancellation of the document would not remove the cloud occasioned by the assertion of a hostile title, as such a document even if cancelled would not remove the assertion of the hostile title. In that case it would be the title that has got to be judicially adjudicated and declared, and mere cancellation of an instrument would not achieve the object. Section 42 of the Specific Relief Act would apply to such a case. The remedy under Section 39 is to remove a cloud upon the title, by removing a potential danger but it does not envisage an adjudication between competing title". That can relate only to instruments executed or purported to be executed by a party or by any person who can bind him in certain circumstances. It is only in such cases that it can be said there is a cloud on his title and an apprehension that if the instrument is left outstanding it may be a source of danger. Such cases may arise in the following circumstances: A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a reversioner in respect of a document executed by the holder of the anterior limited estate a real owner in respect of a document executed by the benamidar etc. This right has also been recognised in respect of forged instruments which could be cancelled by a party on whose behalf it is purported to be executed. In all these cases there is no question of a document by a stranger to the title. The title is the same. But in the case of a person asserting hostile title, the source or claim of title is different. It cannot be said to be void against the plaintiff as the term void or voidable implies that but for the vitiating factor it would be binding on him, that is, he was a party to the contract. " ( 4 ) ACCORDINGLY, the learned Counsel for the appellants contended that the impugned order was illegal and without jurisdiction and the same should be set aside. " ( 4 ) ACCORDINGLY, the learned Counsel for the appellants contended that the impugned order was illegal and without jurisdiction and the same should be set aside. ( 5 ) THE sole question to be decided in this appeal is whether the issue relating to the maintainability of the suit should be taken up for hearing as a preliminary issue. It is relevant in this connection to note the provisions of law governing the subject. Order 14 Rule 2 of the Civil Procedure Code has now been substituted by Act 104 of 1976. Former Rule 2 was as follows : -"2. Issues of law and of fact: - 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 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 the issues of law have been determined". The substituted Rule 2 after the aforesaid amendment which has taken effect from 1. 2. 1977 reads as follows:"rule 2 Court to pronounce judgement 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 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. "thus sub-rule. (1) of the present Rule 2 clearly provides :" Notwithstanding that a case may be disposed of on a preliminary issue the Court shall subject to the provision of Sub-rule (2) pronounce judgement on all issues. "thus sub-rule. (1) of the present Rule 2 clearly provides :" Notwithstanding that a case may be disposed of on a preliminary issue the Court shall subject to the provision of Sub-rule (2) pronounce judgement on all issues. Sub-rule (2) corresponds to the old Rule 2 except for the provision that issue of law to be tried as a preliminary issue must now relate to (a) the jurisdiction of the Court, or (b) to a barto the suit created by any law for the time being in force. " ( 6 ) BEFORE the insertion of new Rule 2 by the amendment Act of 1976 the settled position was that in appealable cases, the Court should as far as possible decide all the issues together, as piecemeal trial of some of the issues might lead to protracted litigation and repeated appeals in the same suit. In a decision reported in AIR 1964 SC 497 , their Lordships of the Hon'ble Supreme court observed that under Order 14 Rule 2 of the Civil Procedure Code 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 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 the issue of law have been determined. Their Lordships observed 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 or a part thereof 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 of fact as preliminary issues. Normally all the issues in a suit should 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 lopsided trial of the suit. Normally all the issues in a suit should 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 lopsided trial of the suit. ( 7 ) HON'ble Justice P. K. Mohanty (as he then was) in his decision reported in AIR 1977 Orissa 42 held that the trial of a case piecemeal is a serious evil to the parties as it leads to protracted litigation and repeated appeals, but at the same time observed that when issues of law, going to the root of the jurisdiction of the Court, arises, the Court must try those issues first. The rule as it existed prior to the amendment permitted the Court to try issue of law preliminary, if it was of opinion that the case or any part thereof may be disposed of by deciding those issues only. Any interpretation of that rule that in no event the issues of law could be tried primarily would oppose to the language of the rule itself, and, therefore, cannot be accepted. The scope and applicability of the said rule have been indicated in the aforesaid cases and in many other cases of different High Courts. The conscientious opinion was that in appealable cases piecemeal trial by taking up some of the issues preliminary should be avoided as it may lead to a protracted litigation and repeated appeals in the same suit, the exception being where the issues of law going to the root of the case arise, which are capable of being decided without evidence in that event the Court shall be bound to try those issues first. Discretion vested in the Court under the rule was to be exercised depending upon the facts of each case. ( 8 ) THE new Rule 2 cpnsists of two parts. First part is contained in Sub-rule 1 which lays down as follows : -"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. "sub-rule (2) deals with a case 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. "sub-rule (2) deals with a case 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. In a case answering the above precondition the Court is authorised to try that issue first if it relates - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. Therefore, the new sub-rule (2) of Rule 2 puts a further restriction on the Court that an issue of la w, though it might be disposing of the suit or any part thereof the same shall not be tried as a preliminary issue unless it involves the jurisdiction of the Court or bar to the maintainability of the suit created by any law in force. Thus after the amendment of the rule it is not permissible for a Court to take up an issue of law as a preliminary issue if the same does not come within the purview of the substituted rule. " ( 9 ) WE shall now proceed to deal with those cases which were decided after the new rule was substituted by the Amendment Act. The first of this category is the decision of Hon'ble Justice R. C. Patnaik reported in AIR1982 orissa 272. Discussing several other cases decided by Orissa High Court as well as by different High Courts, His Lordship has expressed the view that the court in its discretion may try an issue of law only if that issue relates to the jurisdiction of the Court or bar to the suit created by any law for the time being in force. An issue of fact or mixed issue of fact and law cannot be decided as a preliminary issue. His Lordship further observed that where an issue of jurisdiction is a question of fact or is a mixed question of law and fact, it cannot be decided as preliminary issue; but it should be decided on merits along with the other issues. In that case, "whether the suit was barred by law of resjudicata" was the issue. His Lordship further observed that where an issue of jurisdiction is a question of fact or is a mixed question of law and fact, it cannot be decided as preliminary issue; but it should be decided on merits along with the other issues. In that case, "whether the suit was barred by law of resjudicata" was the issue. His Lordship came to the conclusion that the issue relating to resjudicata was not a pure issue of law and decision of that issue would not bring an end to the suit as there were other questions also to be decided. The next case to which reference has been made is a case decided by Justice B. K. Behara in the case of B. N. Das v. Bijoyketan Mohanty, AIR 1983 NOC 62. In that case the new rule was the subject of the inferpretation and it was indicated that in order to avoid harassment to the parties and protracted litigation by remanding the suit for fresh disposal because of misapplication of the provision of Order 14 Rule 2, as it stood before the amendment, the present provision has been made the construction of which should be made keeping in mind the intent of the legislature. It was held in that case that an issue of fact or a mixed question of fact and law is not to be decided as a preliminary issue and is to be decided on merits along with the other issues in the suit. ( 10 ) ORDER 14 of the Civil Procedure Code deals with settlement of issues and for determination of the suit on issue of law where it is so possible. Issues are of two kinds, namely issue of fact and issues of law Sub-rule (3) of Rule 1 thereof provides that each material proposition affirmed by one patty and denied by the other shall form the subject of a distinct issue. Under the Order 14 Rule 2, Civil Procedure Code it is not permissible for the Court to decide an issue of fact as a preliminary issue. It, therefore, follows where an issue of fact is necessary to be decided before an issue of law relating to jurisdiction comes up for consideration, such issue cannot be taken up as a preliminary issue within the meaning of Order 14 Rule 2 of the Civil Procedure Code. It, therefore, follows where an issue of fact is necessary to be decided before an issue of law relating to jurisdiction comes up for consideration, such issue cannot be taken up as a preliminary issue within the meaning of Order 14 Rule 2 of the Civil Procedure Code. ( 11 ) WE have gone through the order of the learned Trial Judge including the pleadings of the parties. So far issue No. 1 is concerned safe and except pleading in the written statement that the suit is not maintainable, the defendant/ respondent No. 1 herein has not stated apart from such bald statement as to why suit was not maintainable as framed by the plaintiff. In the case reported in the AIR 1971 Assam 143 (paragraph 10) where it was held :-" That Court should decline to frame an issue as to the maintainability of the suit in absence of a specific averment in the written statement as to how and in what circumstances the same is not maintainable in law. A mere vague recital in the written statement, without anything more, cannot be the basis for raising such an issue. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties specifically and unambiguously emerging out of the pleadings. Vague issues, suggested in a mechanical way, should not be framed to keep the door open for astute cashuistry as a suit proceeds at different levels leading inevitably to the law's delay. The Court has to own its own responsibility in framing issues". ( 12 ) IN view of the principles of law laid down by the High Court of Assam in the aforesaid reported case, the defendant was not entitled to urge without such pleading that the suit was not maintainable. ( 13 ) READING through the pleading of the parties we are of the view that the question raised was not an issue of law nor did it relate to a bar to the suit created by any law for the time being in force. ( 13 ) READING through the pleading of the parties we are of the view that the question raised was not an issue of law nor did it relate to a bar to the suit created by any law for the time being in force. The issue which has been decided as a preliminary issue by the trial Court being based on the mixed question of the fact and law, cannot be the termed as purely legal issue and it does not fall in the category of the issues which are permissible to be tried as such under the provisions of Order 14. The jurisdiction vested in the Trial Court has not been properly exercised while deciding the said issue. In the instant case not only the party has suffered prejudice by the aforesaid adjudication, but such adjudication was made without jurisdiction in view of the amended provision of order 14 Rule 2 of the Civil Procedure Code and in our view, an interference is warranted in the facts and circumstances of the case. ( 14 ) AS the trial Court has not properly exercised its jurisdiction in deciding the issue as preliminary issue, we set aside the Order No. 27 dated 12. 2. 2002 passed by the learned Trial Judge. We further direct that the decree if any, dismissing the suit consequent to the order deciding the preliminary issue, be also set aside. The case is remanded to the Trial Court with a direction to decide the issue about the maintainability of the suit along with other issues in accordance with law on consideration of the evidences and materials on record. ( 15 ) AS the suit is pending for a long time it is desirable that the suit should be disposed of as early as practicable. With the aforesaid directions, this appeal is disposed of. But, in the circumstances, there will be no order as to costs.