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2017 DIGILAW 1592 (RAJ)

Dinesh Kumar Srivastava v. Pradeep Kumar

2017-07-18

DINESH CHANDRA SOMANI

body2017
ORDER : Dinesh Chandra Somani, J. The instant petition has been filed under Article 227 of the Constitution of India by the plaintiff/petitioners assailing the order dated 27.5.2017 passed by the Additional District Judge No.3, Sikar (hereinafter referred to as 'the trial Court') in Civil Suit No.71/2016 (11/2007) titled as Smt. Maheshwari & Anr. v. Smt. Kamla Devi & Ors, whereby the learned trial Court allowed the application under Order 14, Rule 5 CPC filed by defendant/respondents No.4 to 6 on 24.3.2017 and another application filed by the defendant/respondents No.4 to 6 under Order 14, Rule 2 (1) & (2) (b) read-with Order 14, Rule 5 CPC, framed three additional issues and also ordered to decide the issues as preliminary issues. 2. Learned counsel for the petitioners submits that he does not dispute the correctness of the impugned order regarding framing of additional issues by the learned trial Court, but the petitioners have objection with second part of the impugned order, whereby the learned trial Court has ordered to decide the said additional issues as preliminary issues, because neither of the issue is pure issue of law. Learned counsel also submits that all the three additional issues framed by the learned trial Court, are mixed issues of law and fact, which can be decided only after recording evidence of the parties. In support of his contentions, learned counsel placed reliance on the case of Ramesh B. Desai & Ors v. Bipin Vadilal Mehta & Ors reported in AIR 2006 SC 3672 . 3. Per contra, learned counsel for the respondents No.4 to 6 opposed the arguments of learned counsel for the petitioners and submits that the burden to prove the additional issues framed vide impugned order, is on defendant/respondents No.4 to 6 and the defendant/respondents No.4 to 6 do not want to produce any evidence in respect of these additional issues, as such there is no perversity or impropriety in the impugned order passed by the learned trial Court and prayed to dismiss the petition being devoid or any substance. 4. 4. The additional issues framed by the learned trial Court on 2.6.2017, in pursuance of impugned order dated 27.5.2017 are as under : 1- vk;k nkok oknhx.k Benami Transaction Prohibition Act, 1988 ds izko/kkuksa ds vuqlkj oftZr gksus ls fujLruh; gS\ & izfroknh la[;k 4 ls 6 2- vk;k izfroknhx.k fo'ks"k gtkZ Lo:i oknhx.k ls ,d yk[k :i;s izkIr djus ds vf/kdkjh gS\ & izfroknh la[;k 4 ls 6 3- vk;k lEifr vUrj.k vf/kfu;e] 1982 dh /kkjk 54 esa mYysf[kr izko/kkuksa ds izdk'k esa oknksrj dh pj.k la0 6 d rFkk fo'ks"k dFku dh pj.k la0 26] 27 o 28 ds vuqlkj nkok oknhx.k iks"k.kh; ugha gksus ls fujLr gksus ;ksX; gS\ & izfroknh la[;k 4 ls 6 4- vuqrks"k\ From bare reading of above issues, it transpires that all the three issues are mixed issues of law and fact, which can be decided after recording evidence of the parties to the suit. Relevant provisions of Order 14, Rule 2 CPC are as under : "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 -@ In para = (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. In the case of Ramesh B. Desai & Ors. v. Bipin Vadilal Mehta & Ors. (supra), Hon'ble Apex Court has held that : "12. In the case of Ramesh B. Desai & Ors. v. Bipin Vadilal Mehta & Ors. (supra), Hon'ble Apex Court has held that : "12. Sub-rule (2) of Order 14, Rule 2 CPC lays down that 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. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon AIR 1964 SC 497 , and it was held as under:- "Under Order 14, Rule 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 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 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 the Code confers no jurisdiction upon the Court to try a suit on 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, 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." Through there has been a slight amendment in the language of Order 14, Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue." 6. I am of the opinion that none of the additional issues framed by the learned trial Court is pure issue of law and the said issues can be decided only after recording evidence of the parties. There is no such pure issue of law, which touches the very jurisdiction of the Court or a bar to the suit or creates any bar on the suit by any law for the time being in force. The jurisdiction to try issues of law apart from the issues of fact can be exercised only where the Court is of the opinion that the whole suit may be disposed of on the issues of law alone and the Code of Civil Procedure does not confer any jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. 7. On consideration of submissions of learned counsel for the respective parties and having regard to the material made available on record and more particularly looking to the reasons recorded by the learned Court below in support of the impugned order, I am inclined to set aside the impugned order partly to the extent whereby the learned trial Court has ordered to hear and decide the additional issues as preliminary issues. 8. Accordingly, the petition is partly allowed and the impugned order dated 27.5.2017 passed by the Additional District Judge No.3, Sikar in Civil Suit No.71/2016 (11/2007) titled as Smt. Maheshwari & Anr. v. Smt. Kamla Devi & Ors is set aside to the extent whereby learned trial Court has ordered to hear and decide the additional issues as preliminary issues. 9. In view of above, the stay application also stands disposed of.