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2012 DIGILAW 1758 (PNJ)

Mehar Singh v. Shanti

2012-12-05

A.N.JINDAL

body2012
JUDGMENT Mr. A.N. Jindal, J.: - Written request made on behalf of the learned counsel for the petitioner is declined. 2. The plaintiff/petitioner had filed a suit for damages to the extent of Rs. 10 lacs on account of false and malicious allegations of rape made by of Shanti-defendant against him. FIR No. 128 dated 31.5.1999 under Section 452 and 376/34 IPC in this regard was lodged at Police Station City Abohar. Ultimately, the plaintiff—Mehar Singh and other accused, namely, Ram Singh and Rakesh Kumar were acquitted, vide judgment dated 12.3.2004. Criminal Revision filed by the complainant against the said judgment was also dismissed by this Court on 23.10.2009. 3. However, after acquittal, the plaintiff filed a suit for damages on account of malicious prosecution on 11.5.2007, claiming damages to the extent of Rs. 10 lacs. In the said suit, the court framed issue No. 6 with regard to limitation. The trial court, while interpreting Article 74 of the Limitation Act, 1963, held that the limitation for compensation in a suit for malicious prosecution was one year from the date when the plaintiff was acquitted or prosecution is otherwise terminated. Thus, the suit filed by the plaintiff/petitioner was held to be time barred. 4. The primary contention raised on behalf of the respondent is that when the trial court had framed the issue of limitation, and while treating the same as a preliminary issue, decided the same against the plaintiff and consequently dismissed the suit of the plaintiff, then no revision was maintainable. 5. Having heard the rival contentions raised on behalf of the parties, I agree with the contention raised by the learned counsel for the respondents. Order 14 Rule 2 of the Code of Civil Procedure (for brevity ‘the Code’) deals with the framing of issues, which arise out of the pleadings of the parties. Sub Rule 4 of Order 14 of the Code defines the categories of issues. Issues are of two kinds: (a) issue of fact and (b) issue of law. Order 14 of the Code, thus, empowers the Court to frame and decide issue regarding jurisdiction of the Court or the question of limitation as preliminary issue. Order 14 Rule 2 defines the procedures for dealing with the issues. Issues are of two kinds: (a) issue of fact and (b) issue of law. Order 14 of the Code, thus, empowers the Court to frame and decide issue regarding jurisdiction of the Court or the question of limitation as preliminary issue. Order 14 Rule 2 defines the procedures for dealing with the issues. Rule 14 Rule 2 of the Code reads as under:- “(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 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. The Rule clearly and categorically postulates that where the preliminary issue, relating to bar to the suit created by any law to file such suit, is framed, then the court would postpone settlement of other issues and proceed to decide the said preliminary issue and then deal with the suit in accordance with decision on that issue. When the Court proceeds to treat an issue in the suit as preliminary issue, the proper course to follow is not merely give a finding on the issue but also to decide the suit in accordance with finding given on the preliminary issue. Thus, when the suit stands decided finally on the basis of the finding given on the preliminary issue, then that would amount to a “decree” which is amenable to appeal and not revision. Thus, when the suit stands decided finally on the basis of the finding given on the preliminary issue, then that would amount to a “decree” which is amenable to appeal and not revision. Similar observations were made in the case of Muttamma and others v. Nagamma and another 1993 (3) Karnataka Law Journal 351, wherein the Court held as under:- “In the instant case the learned appellate Judge did not apply his mind to the scope of Section 96 CPC as well as to the fact that by this adjudication so far as regards the court expressing it, conclusively determined the rights of the parties with regard to the matter in controversy, namely, to the very maintainability of the suit. The facts of the instant case do not embrace the facts of the case before this court in the case of Honnayya v. Yellawwa (supra). The trial court decided the suit itself on the preliminary issue of law as provided under Order XIV, Rule 2 (2) (b), CPC and found that the suit itself, is not maintainable. As the suit has been finally disposed of on the finding of this issue dismissal of the suit amounts to a decree. The learned Civil Judge went wrong in holding that no appeal lies against the order passed by the trial court forgetting that the order amounts to a decree.” 7. In the instant case also, the Court not only had decided the preliminary issue but also while deciding the said issue dismissed the suit. Necessary extract of the observations made by the court on 27.9.2010 are re-produced as under:- “Heard on issue no. 6 which has been treated as preliminary issue. Vide separate detailed order of even date, the issue no. 6 is decided in favour of the defendants and against the plaintiff. Therefore, the suit of the plaintiff is dismissed as being time barred. Perusal of the file shows that defendant Nos. 1, 3 and 4 have filed counter claims. Learned counsel for plaintiff has pointed out that there is deficiency in court fee on the counter claims filed by the defendant Nos. 1, 3 and 4. For consideration on the point of court fee on the counter claim filed by defendants Nos. 1 to 4, to come up on 26.10.2010”. 8. 1, 3 and 4 have filed counter claims. Learned counsel for plaintiff has pointed out that there is deficiency in court fee on the counter claims filed by the defendant Nos. 1, 3 and 4. For consideration on the point of court fee on the counter claim filed by defendants Nos. 1 to 4, to come up on 26.10.2010”. 8. The argument of the learned counsel for the petitioner is that since no decree was drawn, therefore, order dismissing the suit cannot be termed as “decree”. Section 96 of the Code prescribes for appeals from original decrees passed by the Courts exercising the original jurisdiction. The expression “decree” has been defined under sub-section (2) of Section 2 of the Code as under:- “”(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within (***) section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” It is obvious from aforesaid that decree means a formal expression of an adjudication which conclusively determines the rights of the parties. Deciding only one point or giving a finding on another issue certainly will not be a decree of the Court. Therefore, Section 96 of the Code of Civil Procedure does not come to the rescue of the respondent.” 9. Section 104 of the Code further provides appeals from certain orders. Similarly, under Order 43 Rule 1of the Code, certain appeals are prescribed against certain orders, but once the suit has been dismissed irrespective of the fact that counter claim has been contested, but for all intents and purposes the court is bound to draw the decree qua such suit. Section 104 of the Code further provides appeals from certain orders. Similarly, under Order 43 Rule 1of the Code, certain appeals are prescribed against certain orders, but once the suit has been dismissed irrespective of the fact that counter claim has been contested, but for all intents and purposes the court is bound to draw the decree qua such suit. In any case, the court has dismissed the suit by specific order dated 27.9.2010 and court further proceeded to deal with the counter claim, as such, order in any case should have been treated as decree. Having examined the judgment delivered in the case of Swaran Versus Gram Panchayat, Malikpur 1998 (3) RCR (Civil) 46, the same is on different proposition. In the said case, the court had decided the preliminary issue holding that the court had the jurisdiction to try the suit. In that situation, certainly order was not appealable. It is also settled proposition that once the suit is dismissed, the act of drawing the decree is of formal nature and if the court has omitted to draw the decree, then the court could be asked to perform its obligation, but merely formal act for non recording of the decree does not take the order disposing of the suit on the preliminary issue out of the purview of maintainability of the appeal. 10. Thus, the crux of the matter is that even if the counter claim was allowed to be continued, yet the suit was dismissed finally. Therefore, mere continuance of the counter claim would not convert the order dismissing the suit on the ground of limitation into an interlocutory order amenable to revision. But settled law is that if the suit is decided finally on a preliminary issue or otherwise, then that would amount to “decree” amenable to appeal. Consequently, finding no merits in the revision the same is dismissed.