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2015 DIGILAW 343 (UTT)

KANTI BALLABH SATYAWALI v. REWADHAR SATYAWALI

2015-07-07

U.C.DHYANI

body2015
JUDGMENT U. C. Dhyani, J. (Oral) 1. By means of present Appeal from Order (A.O.), the defendant/appellant has challenged the judgment dated 18.12.2012 and the decree dated 01.01.2013 passed by the Additional District Judge, Nainital in Civil Appeal no.9 of 2007, Rewadhar Satyawali & others vs. Laxman Singh & another, whereby the said civil appeal was allowed and the matter was remanded back to the trial court for fresh decision on merits. 2. The facts giving rise to the present A.O. are that on 31.05.2006, the plaintiffs/respondents no.1 to 3 filed a civil suit no.9/2006 against the appellant/defendant no.2 before the Civil Judge (J.D.), Ramnagar, Nainital for cancellation of the gift deed dated 15.02.2003 executed by defendant no.1 (respondent no.4 herein) in the capacity of the Manager, Prem Vidhyalaya Tarikhet, Ranikhet, District Almora in favour of appellant/defendant no.2. 3. Since the said suit of the plaintiff / respondent no.1 to 3 was barred by limitation, as such, the Civil Judge (J.D.), Ramnagar, Nainital framed an issue no.3, namely, as to whether the suit of the plaintiff was barred by limitation or not. 4. The trial court, after recording the statements of the parties concerned, and perusal of the entire evidence available on record, decided the issue no.3 against the plaintiffs/respondent nos.1 to 3 and dismissed the suit of the plaintiff on 20.02.2007 on the ground that the suit of the plaintiffs was barred by limitation. 5. Feeling aggrieved by the order dated 20.02.2007, the plaintiffs (respondent nos.1 to 3) preferred a Civil Appeal no.9/2007 before the Additional District Judge, Nainital. Vide judgment and order dated 18.12.2012, the Additional District Judge, Nainital allowed the appeal, set aside the judgment of the trial court and remanded the matter to the trial court for fresh decision on merits by giving a finding that the suit of the plaintiffs was within time. 6. Feeling aggrieved against the judgment of lower appellate court, present A.O. has been filed by the defendant-appellant before this Court. 7. On 25.04.2014, this Court directed the appellant to take fresh steps to serve respondent nos.2/2 & 2/3 by registered post acknowledgment due, in addition to normal mode of service within a week. According to the service report, respondent no.1, 2/1 & 4 have been served personally and the notice on behalf of respondent no.2/2 has been received by other person, namely, Uma Devi. According to the service report, respondent no.1, 2/1 & 4 have been served personally and the notice on behalf of respondent no.2/2 has been received by other person, namely, Uma Devi. Notice on behalf of respondent no.3 has been received by his nephew and the respondent no.2/3 died. 8. None has appeared on behalf of the respondents, despite service of notice. This Court has, therefore, no other option but to hear the matter in the absence of respondents. LCR was, however, called for to facilitate the hearing of A.O. 9. When the matter was taken up for admission on 13.03.2013, the following order was passed by the coordinate bench of this Court: “Learned counsel for the appellant has contended that the appellate court has committed manifest error of law in remanding the suit for fresh decision on the ground that the trial court has committed error of law by deciding only issue No. 3 on merit, which was framed on the point of limitation and did not record any finding on other issues. Prima facie, the finding is perverse. According to the trial court the suit was time barred and the court can dismiss the suit on the limitation and there is no need to deal other issues. Learned counsel for the appellant also contended that the appellate court has also committed error in holding that limitation will run from the date of knowledge even otherwise the trial court did not consider the admission of the P.W.1 and P.W.2 that they got knowledge of the gift deed which was executed by Sri Laxman Singh in favour of the appellant.” 10. Learned counsel for the appellant argued, among other things, that the lower appellate court has erred in not appreciating the statements of PW1 and PW3 regarding the gift deed dated 15.02.2003 and the evidence adduced by the parties and in coming to the conclusion that the suit filed by the plaintiffs/respondent nos.1 to 3 was within time. Learned counsel for the appellant argued, among other things, that the lower appellate court has erred in not appreciating the statements of PW1 and PW3 regarding the gift deed dated 15.02.2003 and the evidence adduced by the parties and in coming to the conclusion that the suit filed by the plaintiffs/respondent nos.1 to 3 was within time. Learned counsel for the appellant also submitted that the lower appellate court committed a gross mistake on the face of record that PW1 and PW3 have admitted in their cross-examination that they had the knowledge of the gift deed dated 15.02.2003 on the same day i.e. 15.02.2003, as such, the suit of the plaintiffs was barred by limitation, but the first appellate court did not peruse the said admission of PW1 & PW3, hence, the impugned judgment of the lower appellate court is liable to be set aside. The lower appellate court was not justified in disturbing the findings recorded by the trial court on the basis of the admission of plaintiffs/respondent nos.1 to 3 that the suit is barred by limitation. The appellant is cultivating the land in question since 1990 after the death of his father, but the lower appellate court did not peruse the entire evidence available on record. The lower appellate court has not discussed the statements of PW1 and PW3 mentioned in their cross-examination and the entire evidence on record and documents submitted by the appellant/defendant no.1. 11. A perusal of the record will reveal that the respondents (plaintiffs) instituted a civil suit against the appellant-defendant & another for cancellation of gift deed dated 15.02.2003. The suit was contested on behalf of the defendants. They filed written statements. On the basis of pleadings of the parties, initially, two issues were framed. Subsequent thereto, two additional issues were framed on 06.12.2006. One of the additional issues was – whether the suit was barred by limitation or not? 12. The parties filed their documentary evidence. PW1, PW2 and PW3 were examined on behalf of the plaintiffs. DW1 and DW2 were examined on behalf of the defendants. The trial court, while dealing with issue no.3 in great detail, came to a conclusion that the suit was barred by limitation. The plaintiffs challenged the said finding before the lower appellate court, who in turn, remanded the matter with certain observations. DW1 and DW2 were examined on behalf of the defendants. The trial court, while dealing with issue no.3 in great detail, came to a conclusion that the suit was barred by limitation. The plaintiffs challenged the said finding before the lower appellate court, who in turn, remanded the matter with certain observations. The trial court gave its finding on issue no.1 on the pretext that the suit has already been barred by limitation. Issue no.2 was, however, decided against the plaintiffs. Since the suit was held to be time barred, therefore, the suit was dismissed, vide judgment and decree dated 20.02.2007. When the judgment of the trial court was challenged before the lower appellate court, it was held that the trial court has not given its finding on issue no.1 and also held that the suit was within limitation and, therefore, reversed the finding on the point of limitation and set aside the judgment and decree of the trial court. The lower appellate court, however, remanded the matter to the trial court to give its findings on all issues, except issue no.3. It may, however, be noted here that the trial court gave its findings on all issues, except issue no.1. The appellant has also challenged that part of the Judgment of lower appellate court, whereby a direction was issued to the trial court to give its findings on the remaining issues. 13. The first question, which arises for consideration of this Court is – whether the trial court was obliged to give its finding on all issues or not? Whether it was not necessary for the trial court to have decided all issues, including issue no.3, on which, he has given a finding that the suit is barred by limitation? What the trial court has done is that he has framed the issues, permitted the parties to lead the evidence in final hearing, heard their arguments, gave the judgment, but left out the decision on issue no.1, which was at the centre of the controversy between the parties. Learned trial court gave a finding primarily on the point of limitation (i.e. issue no.3) that the suit was barred by limitation. How far this action of the trial court was justified? This Court would like to deal with such issue at some length. 14. It will be useful to reproduce Order 14 Rule 2 CPC in this context: “2. Learned trial court gave a finding primarily on the point of limitation (i.e. issue no.3) that the suit was barred by limitation. How far this action of the trial court was justified? This Court would like to deal with such issue at some length. 14. It will be useful to reproduce Order 14 Rule 2 CPC in this context: “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. (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.” 15. After the Amendment Act, 1976, the consideration of an issue and its disposal as a preliminary issue has been made permissible only in a limited case. Though, the issues are of law relating to (i) the jurisdiction of the court, or (ii) a bar to the suit created by any law for the time being in force. Apart from this, no issue can be tried as a preliminary issue. 16. If there is a pure question of law and the same relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, it can be decided as a preliminary issue, but when there is a mixed question of law and fact, it cannot be treated as a preliminary issue. 17. 17. It was held by Hon’ble Allahabad High Court of Judicature of Allahabad, Lucknow Bench in Smt. Thakura vs. District Judge, Sitarpur & others, AIR 2002 Allahabad 356 that an issue of law may be tried as a preliminary issue, provided it relates to the jurisdiction of the Court or to a bar to the suit created by law for the time being in force. However, the said provision gives discretion to the Court to try an issue as preliminary issue or not. The Court is not duty bound to decide any issue as preliminary issue. This is evident from the words “it may try” occurring in the said provision. 18. The issue regarding the territorial jurisdiction of the Court ought to be tried as a preliminary issue. The facts and circumstances of the case may warrant the Court to refrain itself from giving findings on all issues as it may prejudice the trial of the case in the court where it is filed after the plaint is returned. Once the court gave a finding that it had no jurisdiction to try the suit, it would be an exercise in futility to decide other issues on the merits of the case. The findings on other issues after the plaint is directed to be returned for presentation in an appropriate court would prejudice one of the parties and the trial court is justified in not giving findings on other issues framed by it. 19. Order 14 Rule 2 CPC was substituted by Act no.104 of 1976. The underlying object in introducing such an amendment was that where in a particular set of circumstances, the question of limitation is a mixed question of fact and law, it cannot be decided as a preliminary issue. Issues relating to jurisdiction and bar of suit only which have been permitted to be tried as preliminary issues, must be pure question of law as distinguished from mixed question of law and fact as the Code gives no jurisdiction to try a suit on mixed question of law and fact as preliminary issues. The Court should not try an issue as a preliminary issue where factual aspects are involved, if the request for deciding an issue as a preliminary issue has been made with a view to delay the disposal of the matter finally. The Court should not try an issue as a preliminary issue where factual aspects are involved, if the request for deciding an issue as a preliminary issue has been made with a view to delay the disposal of the matter finally. Normally if answer to an issue is determinable on the basis of some principle of law, that issue is an issue of law, if the parties want to lead evidence on an issue, that ceases an issue of law. When the issue relating to limitation requires evidence to be taken, it cannot be tried as a preliminary issue. 20. It will also be relevant to mention Order 20 Rule 5 CPC for convenience: “5. Court to state its decision on each issue. – In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefore, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit.” 21. What will be the import of Order 20 Rule 5 CPC in the context of the Order 14 Rule 2(2) CPC? In appealable cases courts should pronounce their opinion of all important issues. In view of provisions of Order 14 Rule 2 CPC as amended by Amendment Act, 1976 requiring that a court must decide all issues even if the case can be disposed of on a preliminary point except where a pure question of law relating to jurisdiction or bar to suit is involved and further change necessitated thereby as has been made by addition of an explanation to Order 41 Rule 22 CPC empowering a respondent in appeal to file cross-objection in respect of findings against him in a decree notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit the decree is wholly or in part in favour of the respondent, it is submitted that the legislative intent is clear that the Court will now have to decide and state its findings on all the issues even if it considers that finding upon any one or more of the issues is sufficient for the disposal of the suit. Accordingly this rule should have been also consequentially amended by omission of the words ‘unless the finding upon any one or more of the issues is sufficient for the decision of the suit’ at the end. 22. Thus, this Court is of the opinion that when the issues have been framed, parties have led their evidence and the Presiding Judge is writing judgment, the trial court is duty bound to give findings on all issues, no matter the suit can be decided on the basis of finding given in one particular issue. The trial court has, therefore, committed mistake in not deciding all issues. The lower appellate court has rightly held that the trial court was bound to give its decision on all issues, notwithstanding the fact that the suit may be decided on the basis of one technical issue. No interference is called for in the impugned judgment of lower appellate court to this extent. 23. The judgment of the lower appellate court runs contrary to its own finding. On the one hand, the lower appellate court remitted the matter to the trial court to give findings on all issues and on the other hand, the lower appellate court gave its finding that the suit was not barred by limitation. In other words, when the trial court has not given its findings on all issues and has decided the suit only on the point of limitation, which was subject matter of challenge before the lower appellate court, then while remanding the matter to the trial court, the lower appellate court should have refrained itself from giving its verdict on the point of limitation, for, otherwise what is the purpose of remitting the matter? This Court is, therefore, not entering into the controversy as to whether the finding of the trial court on issue no.3 (i.e. on the point of limitation) was rightly reversed by the lower appellate court or not. This Court is going by the simple logic that when, according to Order 14 Rule 2(2) C.P.C., a finding has to be given on all issues, including any issue which may be sufficient to determine the fate of the suit, then there was no propriety on the part of the lower appellate court to have touched upon the issue of limitation. The finding given by the lower appellate court to the extent of remanding the matter to the trial court for decision on all issues is, therefore, maintained. Since there was no logic on the part of the lower appellate court to give its verdict on the point of limitation, therefore, the same is set aside. 24. The result of the above discussion will be that the present A.O. partly succeeds. That part of the order of the lower appellate court, by which, the matter was remanded back to the trial court for fresh decision on all issues is maintained. The finding given by the lower appellate court with regard to the point of limitation is set aside. The trial court is, accordingly, directed to give its findings afresh on all issues in accordance with law after hearing both the parties. Needless to say that the trial court shall not be influenced either by its own judgment or by the judgment of the lower appellate court while deciding the suit in question.