Harnam Singh vs C.G. Electricity Board

Dilip Raosaheb Deshmukh, J.—The appellant/plaintiff has preferred this appeal against the judgment and decree dated 10.12.97 passed in Civil Suit No. 5-B/90 by 5th Additional District Judge, Bilaspur whereby the suit for recovery of Rs. 1,14,555.59 was dismissed.

Admittedly, after filing written statement and framing of issues, the respondent/defendant remained ex parte in suit. It is also not in dispute that the respondent/defendant had by work order dated 8.1.1980 entrusted the work of transportation of 2.5 lakh metric ton coal from W.C.L. River Bed Quarry (R.B.Q.) to power house No. I/II, M.P.E.B., Korba.

The appellant/plaintiff had pleaded that the respondent/defendant repeatedly caused hindrance in the completion of work entrusted to him, due to which, till 20.02.80 he could transport only 9807.548 metric tonnes coal, and thereafter, had to stop further transportation. Since the respondent/defendant neither refunded the security deposit of Rs. 10,000/- nor paid the charges towards transportation of the above mentioned quantity of coal by the appellant/plaintiff, the plaintiff instituted Civil Suit No. 5-B of 1990.

The respondent/defendant filed written statement, denied its liability to pay the amount to the plaintiff and raised questions of law relating to jurisdiction of the Civil Court on the ground that there was an arbitration clause in the work contract awarded to the plaintiff, and therefore, the Civil Court had no jurisdiction to adjudicate the suit. A plea that the suit was barred by limitation was also taken.

The learned 5th Additional District Judge framed as many as 10 issues including the question of jurisdiction and limitation. However, no finding was recorded on any issue solely on the ground that the defendant had remained ex parte in the suit and the suit was dismissed purely on technical grounds of non-compliance of Order 10 and 11 C.P.C.

Shri Prafulla N. Bharat, learned Counsel for the appellant/plaintiff has raised a preliminary objection that the impugned judgment and decree is contrary to law and is liable to be set aside because the learned 5th Additional District Judge refused to adjudicate upon the issues and did not consider the averments in the written statement only on the ground that the defendant had remained ex parte. It was further contended that merely on the basis of non-compliance of the provisions contained in Order 10 and 11 C.P.C., the dismissal of the suit was wholly unwarranted and was contrary to law. It was prayed that while allowing the appeal, the matter should be remanded to the learned 5th Additional District Judge for pronouncing judgment after recording specific finding on each issue.

Shri A. S. Gaharwar, learned Counsel appearing on behalf of respondent formally opposed the prayer.

I have heard learned Counsel for the parties. Order 14 Rule 2 C.P.C. is as under:

Order 14 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 issue 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.

A plain reading of the above provision shows that a duty is cast upon the Court for pronouncing judgment on all issues in a case where the defendant has filed written statement and issues have been framed by the Court.

In the present case, the defendant had filed a written statement denying its liability to pay the amount claimed by the plaintiff and had also raised questions of law relating to limitation as also the jurisdiction of the Court. As many as 10 issues were framed including the issue of jurisdiction and limitation. The learned 5th Additional District Judge while dismissing the suit did not even take the averments made by the defendant in the written statement into consideration and dismissed the suit on technical grounds of non-compliance of Order 10 and 11 C.P.C. There is no element of doubt that due to the failure of the Court below in considering the averments made by the defendant in the written statement and recording a specific findings on issues, the impugned judgment and decree is liable to be set aside.

In the result, the appeal is allowed. The impugned judgment and decree is set aside. The matter is remanded to the 5th Additional District Judge, Bilaspur with a specific direction to proceed in accordance with the mandatory provision of Order 14 Rule 2 C.P.C. In the circumstances, there shall be no order as to costs.