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2022 DIGILAW 1328 (ALL)

Pramod Khandelwal v. Vinod Khandelwal

2022-08-23

SARAL SRIVASTAVA

body2022
JUDGMENT : 1. Heard Sri A.K. Goyal, learned counsel for the revisionist/ defendant and Sri Siddharth Srivastava, learned counsel for plaintiff/respondent no.1. 2. The plaintiff/respondent no.1 instituted a suit for cancellation of sale deed dated 30.03.2009 executed by defendant/respondent no.1 in favour of defendant/respondent no.3. The suit was instituted on the ground that the plaintiff/respondent no.1 is the owner of the property in dispute and sale deed has been illegally executed by the defendant/respondent no.1 in favour of defendant/respondent no.3. 3. In the suit, an application under Order 7 Rule 11 C.P.C. was filed by the revisionist/defendant no.1 contending inter-alia that the suit is barred as the sale deed has been executed under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SECURITISATION ACT, 2002') and a case for cancellation of sale deed is registered as Case No.67 of 2008 is pending before the Debt Recovery Tribunal. 4. The trial Court by order dated 01.09.2021 rejected the said application holding that the question whether the suit is barred is mixed question of fact and law, therefore, prima facie it appears that the power under Order 7 Rule 11 is not to be exercised in such a case. 5. After the pleadings have been exchanged, the trial Court framed as many as 12 issues. After framing of issues, the revisionist/defendant filed an application No.103Ga praying therein that the Issue Nos. 6, 7 & 10 of the suit may be decided as preliminary issues. The issues Nos. 6, 7 & 10 reads as under:- ^^6- D;k okn vko';d i{kdkjksa ds u cuk;s tkus ls nwf”kr gS\ 7- D;k okn /kkjk 10 lhŒihŒlhŒ ds varxZr LVs gksus ;ksX; gS\ 10- D;k bl U;k;ky; dks okn dh lquokbZ dk {ks=kf/kdkj izkIr gS\^^ 6. The trial Court found that the necessary party has been impleaded by the defendant/respondent no.1 and the original suit Nos.539 of 2009 & 510 of 2009 have been clubbed. So far as the question of jurisdiction framed as Issue No.10 is concerned, it is a mixed question of fact and law and can be decided with other issues. The trial Court further recorded that the application has been filed to delay the proceeding as on the last four dates the defendant/revisionist has sought time to cross-examine PW1, and thereafter the said application 103Ga was filed. 7. The trial Court further recorded that the application has been filed to delay the proceeding as on the last four dates the defendant/revisionist has sought time to cross-examine PW1, and thereafter the said application 103Ga was filed. 7. Challenging the aforesaid order, learned counsel for the revisionist has contended that once the question of jurisdiction arises and suit is exclusively barred by Section 34 of the SECURITISATION ACT, 2002, it is incumbent upon the trial Court under Order 14 Rule 2 C.P.C. to decide the question of jurisdiction first so that the proceedings may not prolong unnecessarily and the revisionist may not suffer harassment. 8. It is contended that from the reading of Section 34 of the SECURITISATION ACT, 2002, it is evident that suit is exclusively barred and as no question of fact is involved and only question of jurisdiction is involved, therefore, the trial Court ought to have decided the Issue No.10 as preliminary issue. He submits that provision under Order 14 Rule 2 C.P.C. which provides for decision of issue on jurisdiction is mandatory and the Court below has to follow the said provision and decide the said issue first as preliminary issue. 9. In support of his argument, he has placed reliance in the case of Manager, Bettiah Estate Vs. Bhagwati Saran Singh and other, 1992 (2) AWC 1233 & Mrs. Shahnaz Husain and Other Vs. Mohd. Yunus & Other, 1993 (1) ACJ 216 & Smt. Subhash Bhalla and another Vs. Smt. Jai Devi and another, 2008 All. C.J.773. 10. Per contra, learned counsel for the plaintiff/respondent contends that almost on identical plea, an application under Order 7 Rule 11 C.P.C. was filed wherein it was alleged that as the sale deed has been executed under Section 13(2) of the SECURITISATION ACT, 2002, therefore, the suit is barred. He submits that while deciding the application under Order 7 Rule 11 C.P.C. the trial Court has returned a specific finding that the question of jurisdiction involved in the case is a mixed question of fact and law and cannot be looked into at this stage. He submits that while deciding the application under Order 7 Rule 11 C.P.C. the trial Court has returned a specific finding that the question of jurisdiction involved in the case is a mixed question of fact and law and cannot be looked into at this stage. He submits that the finding returned by the Court below on application under Order 7 Rule 11 Cr.P.C. is binding and as the question of jurisdiction involved in the instant case is a mixed question of fact and law, therefore, the same cannot be decided as a preliminary issue and can be decided only after the parties lead evidence. 11. It is further contended that provision under Order 14 Rule 2 C.P.C. is only directory and not mandatory and the trial Court is at discretion given in the facts of the case to decide the said issue as preliminary issue or with other issues. In support of his contention, he has placed reliance upon the case reported in 2010 (78) ALR 755, Dhampur Sugar Mills Ltd. and another Vs. Rajeev Sinha. 12. Having considered the submissions advanced by learned counsel for the parties and perused the record. 13. It transpires from the record that the suit has been instituted by the plaintiff/respondent no.1 for cancellation of sale deed dated 30.03.2009 on the ground that he is the exclusive owner of the property in question. In the said suit, an application under Order 7 Rule 11 C.P.C. was filed contending inter alia that as the sale deed had been executed under Section 13(2) of the SECURITISATION ACT, 2002, therefore, the suit before the trial Court is not maintainable and is barred . 14. The trial Court recorded a finding that whether the suit is barred, is a mixed question of fact and law in the instant case and accordingly, it refused to reject the plaint under Order 7 Rule 11 C.P.C. The order of the trial Court dated 01.09.2021 rejecting the application under Order 7 Rule 11 has not been assailed by the revisionist and has attained finality. 15. After the pleadings have been exchanged, the issues have been framed. 16. Learned counsel for the revisionist has urged the contention only as regards the Issue No.10. 15. After the pleadings have been exchanged, the issues have been framed. 16. Learned counsel for the revisionist has urged the contention only as regards the Issue No.10. He submits that the trial Court while rejecting the application of the revisionist to decide the Issue No.10 as preliminary issue recorded a specific finding that it is a mixed question of fact and law and has relied upon the order of the trial Court dated 01.09.2021 whereby the trial Court has refused to entertain the application under Order 7 Rule 11 on the same ground. The trial Court further noticed that application 103Ga has been filed only to delay the proceedings as on previous four dates defendant/revisionist has sought time to cross-examine the PW1 and instead of cross-examining the PW1, an application to decide the preliminary Issue No.10 was filed. 17. Perusal of Order 14 Rule 2 C.P.C. indicates that it is only when the question of jurisdiction is exclusively involved which does not require any investigation of fact and the same can be decided on the basis of pleadings without any evidence, the trial Court can decide the said issue as preliminary issue. The object of incorporating such provision is manifest that if suit can be concluded on the basis of one issue, the parties should not be harassed in protracted and prolong litigation. 18. In the instant case, the finding returned by the trial Court while rejecting the application is that the issue involved is a mixed question of fact and law which requires appreciation of evidence in support of the pleadings on record. This Court finds that the trial Court has not committed any jurisdictional error in dismissing the said application. 19. This Court also in the case of 2010 (78) ALR 755 in Para 4 has held that jurisdiction vested under Order 14 Rule 2 C.P.C. is discretionary and not mandatory. Para-4 of the said judgment reproduced herein-below:- “4. The short question for determination of this revision is whether the impugned order suffers from jurisdictional error and can be interfered with in this revision. In order to reach to the right conclusion, it is necessary to go through the provisions of Order XIV Rule 2 C.P.C. and as amended vide Code of Civil Procedure Amendment Act, 1976 w.e.f. 1.12.1977, which reads as under: “ Rule-2. In order to reach to the right conclusion, it is necessary to go through the provisions of Order XIV Rule 2 C.P.C. and as amended vide Code of Civil Procedure Amendment Act, 1976 w.e.f. 1.12.1977, which reads as under: “ Rule-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.” It reveals from the perusal of the Order XXIV Rule 2 C.P.C., quoted above that it is within the discretion of the court to decide which issue he should decide as preliminary issue and it is not mandatory for the court to decide the issue of jurisdiction or issue relating to maintainability of the suit as preliminary issue. Sub-rule (1) of Rule 2 mandates the Court that notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. Order XXIV, Rule 2 of the C.P.C. was amended vide CPC (Amendment) Act, 1976 w.e.f. 1.2.1977 making it discretionary for the Court to decide the preliminary issues after taking evidence along with other issues. Thus, the intention of Legislature is clear that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues be avoided, as far as possible. If all the issues are decided at a time that may avoid unnecessary delay and multiplicity of the proceedings in relation to the deciding the preliminary issue. ” 20. Now, paras-9,10, 11, & 12 of Manager, Bettiah Estate (supra) on which reliance has been placed by the learned counsel for the revisionist are being reproduced herein-below:- “9. If all the issues are decided at a time that may avoid unnecessary delay and multiplicity of the proceedings in relation to the deciding the preliminary issue. ” 20. Now, paras-9,10, 11, & 12 of Manager, Bettiah Estate (supra) on which reliance has been placed by the learned counsel for the revisionist are being reproduced herein-below:- “9. From the perusal of the amended provision of Rule 2 it will be clearly seen that now there are only two categories of issues which can be decided as preliminary issues. Those issues of law as relate to (a) jurisdiction, of the Court or (b) to the bar to the suit created by any law for the time being in force. Apart from the above no other issue can now be decided as preliminary, a fortiori no issue of fact or a mixed issue of fact and law can be, decided as preliminary issue and consequently such issues must be left to be decided along with the rest of the issues. The object of this obviously is avoidance of piecemeal trial and abridging protracted litigation. 10. On comparison of the earlier rule and the present one will indicate that previously the categorisation was between issue of law and fact only and it was mandatory for the court to decide all issues of law in the first instance. On the contrary under the amended rule the mandate to the Court is to pronounce the judgment on all the issues raised subject to the provision of sub-rule (2), notwithstanding the fact that the disposal of one preliminary issue may result in the disposal of the whole suit. The only exception carved out by sub-rule (2) is to confer discretion upon the Court that it may dispose of an issue of law as a preliminary issue if, in its opinion, it can dispose of the whole suit subject to further limitation that the issue of law must either be as to the jurisdiction of the Court or as to the bar of any law to the suit. The use of expression "on issue of law only" has its own significance which cannot be ignored. Amended provision has thus drastically changed the earlier notion that all issues of law have to be disposed of at the initial stage before the trial. The use of expression "on issue of law only" has its own significance which cannot be ignored. Amended provision has thus drastically changed the earlier notion that all issues of law have to be disposed of at the initial stage before the trial. Now the Courts power to dispose of an issue of law as preliminary issue has been considerably restricted. 11. The rule however, does not give any arbitrary or unbridled power to the Court. The discretion in this regard has to be exercised in a judicious manner. In fact the discretion to try a preliminary issue of law relating to jurisdiction or bar to the suit should be exercised only when it is so clear that the decision will dispose of the suit finally and once for all without the necessity of recording any evidence. If there be any necessity to refer to any authority on the question it will suffice to mention AIR 1980 Delhi, 122, Oriental Travels Pvt. Ltd. v. State Transport Authority and AIR 1979 MP 153 . 12. To sum up the legal position appears to us to be as under: Only an issue of law can be decided as a preliminary only where it is such that its decision does not necessitate investigation into facts and it relates either to the jurisdiction of the Court or to the suit being barred under any prevailing law, and that, in the opinion of the court the decision of the issue will, result in the decision of the whole or a part of the suit. The discretion in this regard must always be exercised on the basis of sound judicial principles. It may however, be made clear that even if an issue of law can be decided as a preliminary issue as aforesaid the Court is not always bound to decide it as a preliminary issue and can in its discretion, postpone its decision also along with other issues whether of law or fact. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof.” 21. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof.” 21. Reading of para-12 of the above judgment discloses that the Division Bench has categorically held that the issue of law can be decided as a preliminary issue only where it is such that a decision does not necessitate investigation into facts and it relates either to jurisdiction of the Court or to the suit being barred under any prevailing law. The said observation in the judgment supports the contention of the plaintiff/respondent no.1 and, thus, the said judgment does not come in the aid of the revisionist as the trial Court in the instant case is of the opinion that question of jurisdiction in the instant case is a mixed question of fact and law. 22. The another judgment, i.e. Mrs. Shahnaz Husain (supra) relied upon by the learned counsel for the revisionist is also of no help to the revisionist as in the said case also this Court had held that the plea regarding jurisdiction should be decided as preliminary issue. In the instant case, such proposition of law does not apply in view of the finding returned by the trial Court. 23. So far as the third judgment, i.e.Smt. Subhash Bhalla (supra) relied upon by the learned counsel for the revisionist is concerned, the same is also not applicable in the facts of the present case as in the said case, the Court was considering the scope of Order 7 Rule 11 C.P.C. and Order 14 Rule 2 (2) C.P.C. 24. Thus, for the reasons given above, this Court finds that the revision lacks merit. It is accordingly, dismissed with no order as to costs.