Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 15 (MP)

Ramkumar Singhai v. Komal Prasad

2018-01-04

VIVEK AGARWAL

body2018
ORDER 1. This petition under Article 227 of the Constitution of India has been filed being aggrieved by the order dated 26.4.2017, whereby an application under Order 14 rule 2 of CPC filed by the petitioner to decide the issue of jurisdiction as a preliminary issue has been rejected. 2. It is petitioner's contention that this preliminary issue should have been decided first and then only the Court should have proceeded with the suit. It is also submitted that the Court has not assigned any reason for rejecting the application and the order passed by the trial Court is cryptic. 3. Learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Ramesh Kumar Jain v. Pradeep Kumar Jain and another, as reported in 2014(1) MPWN 123 , wherein in para 9, it has been held that when specific points were raised in regard to framing of new issues, then Court below was required to apply its mind on every paragraph of this application. He has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kranti Associates Pvt. Ltd. and another v. Masood Ahmed Khan and others, as reported in (2010)9 SCC 496. Placing reliance on para 47 of the said judgment, learned counsel for the petitioner submits that the judicial trend in India has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially and it is further mentioned that a quasi-judicial authority must record reasons in support of its conclusions. Placing reliance on this judgment, learned counsel submits that no reason is assigned while rejecting his application under Order 14 rule 2 of CPC. Petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rameshwari Devi and others v. Nirmala Devi and others, as reported in (2011)8 SCC 249 , “wherein it has been held that prolong trial by creating obstacles by making frivolous applications or filing forged documents with motive of avoiding dispossession of unauthorised persons (defendants) from immovable property of plaintiff is not correct. In para 25 it has been held that sub-rule (2) of Order 14 rule 2 of CPC refers to the discretion given to the Court where the Court may try an issue relating to the jurisdiction of the Court or the bar to the suit created by any law for the time being in force as a preliminary issue. It further relates to disposal of the suit treating these points as preliminary issues and also relates to deferring the settlement of other issues, but there is no such case. It is also mentioned that when the matter is at the stage of final arguments and the point raised was not covered by Order 14 rule 2 (2) CPC. Neither it relates to bar created by any law nor the jurisdiction ofthe Court to entertain the suit. 4. On the other hand, learned counsel for the respondent No.1 has placed reliance on the judgment of this Court in the case of Mohd. Mustafa Khan v. Gulam Raoof and others, as reported in 1996(1) VIBHA 285= AIR 1996 MP 11 , wherein it has been held that an application under Order 14 rule 2 of CPC if raises an issue relating to the jurisdiction of the Court, can be treated as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of fact and law requiring recording of evidence, same can not be treated as preliminary issue. In view of such judgment, he submits that trial Court has categorically recorded a finding that such an issue, as has been raised by the petitioner, can only be decided after taking evidence, which categorically means that it is a mixed question of fact and law. Therefore, the reason in rejecting the application is inherent in the order and does not call for any interference. 5. As far as Order 14 rule 2 of CPC is concerned, it provides that sub rule (1) provides that 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. 5. As far as Order 14 rule 2 of CPC is concerned, it provides that sub rule (1) provides that 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) of rule 2 of Order 14 provides that : "(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." 6. As far as the present case is concerned, valuation of the suit has been put to challenge. Earlier, petitioner had filed an application under Order 7 rule 11 of CPC mentioning therein that the land in question is a diverted land and therefore the valuation, which has been put forthwith by the plaintiff is incorrect. That application is dealt with and was decided by the trial Court vide order dated 21.4.2016, wherein it has categorically recorded a finding that the revenue records which have been produced, does not reveal that the land is diverted and therefore the ground taken by the defendant No. 8 (who is petitioner in the present case) is not proved. In view of such finding, it had rejected the application under Order 7 rule 11 of CPC. Now thereafter, again an application has been filed under Order 14 rule 2 of CPC, which too has been decided by the trial Court saying that the issue, which the petitioner wants to be decided as a preliminary issue can only be decided after taking evidence. 7. Now thereafter, again an application has been filed under Order 14 rule 2 of CPC, which too has been decided by the trial Court saying that the issue, which the petitioner wants to be decided as a preliminary issue can only be decided after taking evidence. 7. It is well settled principle of law that where there are mixed question of fact and and law, then the CPC confers no jurisdiction on a Court to decide the mixed question of fact and law unless the facts are clear from the plaint itself and the mixed question of fact and law can be determined on the principle of demur. In fact, after amendment in the CPC, only pure question of law can be decided as preliminary issue and is not a mixed question of fact and law. In the present case, since the question of valuation is a mixed question of fact and law, inasmuch as status of the land is to be seen whether it has been diverted or not, the trial Court has rightly held that such issue can be decided only after evidence is adduced before it. 8. In view of the decision of this Court in the case of Mohd. Mustafa (supra), and also the fact that this Court is of the opinion that the question of valuation is a mixed question of fact and law, the trial Court has rightly held that it can be decided only after evidence is adduced in the matter. Thus, there is no short-coming, imperfection or illegality in the impugned order calling any interference in the supervisory jurisdiction of this Court and thus the petition fails and is dismissed.