Dewan Montaz Ali vs Mustt. Badirannessa and Others

K.N. Saikia, C.J.—The Petitioner, who is Defendant No. 1 in Title Suit No. 2 of 1980 impugns the order of the trial Munsiff dated 6.7.81 issued on petition No. 746 dated 25.6.80 deciding the preliminary issue, namely, Issue No. 1 holding that the suit is maintainable and it should proceed and consequently dismissing the Defendant''s petition No. 746.

The Plaintiff/Respondent''s Title Suit No. 262/80 is under petition 6 of the Specific Relief Act for recovery of possession land. The Defendant Petitioner in his written statement inter alia, that be had been possessing the land since days of his father that the suit was filed beyond the period six months of dispossession; and as such, was not maintainable u/s 6 of the Specific Relief Act. The trial Court the, pleadings framed several issues, Issue No. 1 being where suit is maintainable. On 25.6.80 while the Plaintiff ready with her six witnesses the Defendant-Petitioner filed petition No 746 praying that the Issue No. 1 be tried as a preliminary issue as the records of two earlier cases that would necessary to decide the point were already called for. The learned trial Court perusing the records of Misc. Case No. 202 u/s 107, Code of Criminal Procedure held that there was no dispossession of the Plaintiff on 26.3.78 what took place was only obstruction and not dispossession, and consequently, the suit could not be held to have been brought beyond six months of possession. Consequently the Petition No. 746 was dismissed the suit was held to be maintainable and ordered to produced. Hence this petition.

Mr. P.N. Goswami, the learned Counsel for the Petitioner submits, inter alia, that the learned trial Court erred in and acted beyond jurisdiction in holding that the occupied on 26.3.78 did not amount to dispossession without recorded any evidence of the Defendant and also without perusing available records of the other case, namely, Complaint Case 797/78 u/s 354/447/147 I.P.C. and hence the impugned order is liable to be set aside as it would cause miscarriage of justice.

Mr. B. Sarma, the learned Counsel for the Plaintiff/Respondent answer that the Defendant-Petitioner himself having petitioned to the court to try the Issue No. 1 as the preliminary issue there could be no question of recording any evidence for deciding that issue. The learned trial court has perused the relevant records of the cases called for at the instance of the Defendant and of a correct application of the law to what happened on 26.3.78 between the parties rightly held that there was only obstruction but no dispossession of the Plaintiff and that this finding of a jurisdiction fact is not liable to be interfered with in this revision.

The precise question to be decided, therefore, is whether the question of maintainability of a suit u/s 6 of the Specific Relief Act on the ground of its being instituted beyond six months of dispossession could be tried as a preliminary issue, and if so, whether it could He done in the instant case without recording evidence as to the factum of dispossession. The relevant provisions of law may be consulted. Order 14 Rule 2 of the CPC before amendment in 1976 provided:

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 on y, 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.

After amendment in 1976, it now provides:

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 provision 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) 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.

This Rule has been substituted for the old one by the CPC Amendment Act, 1976 (Act 104 of 1976) to provide that although a suit can be disposed of on a preliminary issue the court shall ordinarily pronounce judgment On all issues but where any issue relates to the jurisdiction of the Court or u bar created by any law for the time being force, the Court may postpone the settlement of the other issues until the preliminary issue with regard to the jurisdiction of the Court or such bar has been determined and the Court may deal with the suit in accordance with the determination of preliminary issue.

Where a case can be disposed of on a preliminary point (issue) of law, often the Courts do not inquire to the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the case has to be remanded to the Court of the first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a Court may give judgment on all issues, excepting of course, where the court finds that it has no jurisdiction or where the suit is barred by any for the time being in force.

The plea of want of jurisdiction is to be decided as a preliminary issue. Where issues which raise pure questions of law, e.g. of jurisdiction, limitation, res judicata, or the suit being barred on she face of it by any law, which do not enquire any investigation into facts and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it is incumbent upon the court to decide the issues of law first. If, on the other hand, the court is of opinion that the issue of law cannot be determined without investigation into facts or the point of law raised is not clear or that the case or any part thereof cannot be so disposed of, the Court may decline to determine the issue of law first. The Court must address itself to these vital points when raised and then decide whether the issues of law should be decided first or they should be decided along with other issue; in the case. Where the Court finds that the suit cannot be finally disposed of once for all on the preliminary issue, the Court should decline to decide the issue as a preliminary issue. An issue, the decision of which requires recording of evidence is not a preliminary issue. Issues of fact should not be decided as preliminary issues; and so also where the determination of issues of law depends upon the determination of the issues of fact, the issues of law should not be tried as preliminary issues.

In Major S.S. Khanna Vs. Brig. F.J. Dillon, law has been settled that 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 tae issue of fact may be exercised only where in tae opinion of the court the whole suit on 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 lop-sided trial of the suit.

In A. Shantharam v. A. Rama Amin AIR 1987 Kar 1, it has been held that though a decision on an issue, one way or the other, either may give or take away the jurisdiction of the court, yet the fact that is an issue involving jurisdictional fact is not by itself sufficient for the court to try such an issue as a preliminary issue, in as much as an issue requiring evidence is not a preliminary issue that could be so tried. I respectfully agree.

Applying tie law to the, facts of the instant case, the question here is whether the suit was filed within six months of dispossession of the Plaintiff oil 26.3.78. This was undoubtedly a question of fact. If there was no dispossession the period of six months would not begin to run; it would run from that date only when there was dispossession, No doubt two case records were called for, but the case records by themselves would not constitute evidence in the instant case unless those were brought as evidence on record. There was also dispute as to whether the episode of the Plaintiff''s being driven away by the Defendant amounted to dispossession and that inquired the ascertaining of the facts leadings to the Plaintiff''s being driven away and the claims made by the Defendant. All these could not be taken as a question of low and as they needed evidence. The issue whether the suit was maintainable depended wholly on the question of dispossession and as such, it could not be taken to be a pure issue of law. At best it was a mixed issue of laws and fact, for which evidence was necessary. That could not, therefore, be decided as a preliminary issue. It is true that the Defendant himself submitted the petition, but the discretion was to be exercised in accordance with law by the court and the discretion exercised by the Court to decide the, issue m a preliminary issue cannot be said to have been correct. The impugned order accordingly is not sustainable in law and hence it is set aside. The petition No. 746 dated 25.6.80 is dismissed. The trial court shall now proceed to decide the suit on all its issues in accordance with law.

This application is accordingly allowed and the Rule made absolute. No costs.