J. and K. Bank Ltd. vs Mohammad Farooq Rather and Others

R.C. Gandhi, J.—This revision petition has been preferred against the order dated 1-12-2001 passed by the learned IIIrd Subordinate

Judge (Forest Magistrate), Srinagar, whereby, in a suit he has disposed of the following six issues as preliminary issues :

Whether the suit of the plaintiffs is not maintainable? OPD

Whether the plaintiffs have no locus standi to file the suit? OPD

Whether plaintiffs have no cause of action? OPD

Whether the plaintiffs right to institute the suit is barred by estoppel, if yes, How? OPD

Whether the suit of the plaintiffs is hit by misjoinder and non-joinder of necessary parties? OPD

Whether the suit has not properly been valued and requisite Court-fee has not been paid? OPD

The petitioner has challenged the impugned order on the ground that the trial Court has occasioned failure of justice by deciding these issues as

preliminary issues, which could not have been treated as preliminary issues in view of the mandate of Order 14, Rule 2 of the C.P.C.

Heard the learned counsel for the parties.

Perused the impugned order and the memorandum of the petition.

The learned counsel for the respondents in support of the Impugned order has submitted that the issues have been decided by the Court in

accordance with law and that the petitioner cannot challenge it at this stage as it open to him take it as a ground in the appeal.

Undoubtedly a right is available to the party against whom issue has been decided to challenge it by setting up a ground in an appeal.

Notwithstanding that, if the decision of an issue causes failure of Justice or the Court decides it as a preliminary issue, the petitioner cannot be

denied the remedy if available to him to challenge it before the final adjudication of the suit.

The learned counsel for the petitioner has submitted that the issues decided by the Court is an exercise of jurisdiction in breach of the mandate

of Order 14, Rule 2(2), C.P.C. His submission is that these issues could not be even treated as preliminary issues and the trial Court should not

have decided the suit in piecemeal. Order 14, Rule 2, Sub-rules (1) and (2) of C.P.C. is reproduced for convenience and reads thus :

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.

The intent of Rule 2 is to clothe the Court with the jurisdiction to pronounce judgment on all issues that the case may be disposed of on a

preliminary issue. The Court has to pronounce judgment on all the issues with the exception contained in Sub-rule (2). The exception confers the

discretion on the Court that if the Court is of the opinion that the case or any part thereof can be disposed of on an issue of law alone, it may try

that issue in the first instance. Sub-rule (2) relaxes the mandate of Rule 2 to this extent. The issue contemplated to be tried in terms of Sub-rule (2)

must relate either to the jurisdiction of the Court or the bar to the suit created by law. If the Court decides the issue as a preliminary issue which is

not relating to law in that event decision of such a preliminary issue shall be a breach of the mandate contained in Rule 2, Order 14, C.P.C. Where

the suit can be disposed of by deciding the preliminary issue in terms of Sub-rule (2), the Court need not to defer the framing of all the issues but

may decide the preliminary issues first. The trial Court has decided the issues vide impugned order which are mixed questions of facts and law and

could not have been treated as preliminary issues. The impugned order deciding the issues which could not have been treated as preliminary issues

cannot sustain the test and mandate of law contained in Sub-rule (2). The order impugned, therefore, cannot be maintained being passed by illegal

exercise of jurisdiction and is, accordingly, quashed. The parties to appear before the trial Court on 6-9-2002.