Kamla Devi and Others vs Vinod Kumar

R.L. Anand, J.—This is defendant''s appeal and has been directed against the order dated 4.8.1986 passed by the Court of Addl. District Judge, Gurdaspur who set aside the judgment and decree dated 21.1.1986 passed by the Court of Sub Judge, 1st Class, Pathankot who dismissed the suit of the respondents on preliminary issues.

Some facts can be noticed in the following manner:

Sh. Vinod Kumar and Smt. Nirmala Devi had filed the suit for declaration to the effect the preliminary decree dated 12.10.1983 is illegal, void and ineffective and it does not take into consideration the stair case marked MU of the ground floor and XYZ at the first floor and ABCD on the second floor Mounti alongwith Deodi and Court Yard marked MNOPQRSTUV all marked red on the ground floor shown in the map plan of the house marked on the ground floor ABCD in the first floor EFGH and on the second floor IJKL respectively shown the ownership and possession of the plaintiffs and the defendants situated in Mohalla Wadehrian Pathankot. The plaintiff also claimed a relief for permanent injunction against the defendants from effecting partition in accordance with the preliminary decree passed by the Court of Sub Judge, 1st Class on 12.10.1983 fully described in the head note of the plaint.

The case set up by the plaintiffs was that preliminary decree dated 12.10.1983 passed by the Court of Sub Judge, 1st Class, Pathankot in favour of the defendants was illegal, void and ineffective in as much as the same does not take into consideration the stair case alongwith Deodi and courtyard and as depicted in the site plan filed by the plaintiffs alongwith the plaint. According to the plaintiffs this part of the property is the joint ownership of the parties to the suit situated in Mohalla Wadehrian, Pathankot. It was further contended that plaintiff No. 3 Devki Nandan was a person of unsound mind and he was being represented by his wife as his guardian as well as the next friend.

Suit was contested by the defendants appellants who filed joint written statement and they took certain preliminary objections such as the plaintiffs were the parties to the suit in which the preliminary decree was passed. The plaintiff No. 3 also contested the suit through his counsel and resultantly the plaintiffs are estopped by their own act and conduct in filing the said suit. Further the present suit is barred by the provisions of Order 2 Rule 2 CPC and also u/s 11 of the C.P.C. It was also alleged that provisions of Order 32 Rule 3 CPC have not been complied with by the plaintiffs before filing the suit. In short the defendants defended the judgment and decree dated 12.10.1983. From the pleadings of the parties, the learned trial Court framed six issues. However, issues No. 3, 4 and 5 were treated as preliminary which can be re-produced as under :-

"3. Whether the plaintiffs are estopped from filing this suit by their act and conduct? OPD

Whether the suit is barred by the provisions of Order 2 Rule 2 CPC as Well as res judicata?

Whether the provisions of Order 32 Rule 3 CPC have not been complied with for the appointment of Smt. Madhu Rani as next friend of Devki Nandan? OPD."

The parties were afforded opportunities to lead evidence. The parties placed documentary evidence in support of their rival contention before the court and on the conclusion of the proceedings issue No. 3 and 4 were decided in favour of the defendants and against the plaintiffs. While issues No. 5 was decided against the defendants and by virtue of the findings given by the trial court on issues No. 3 and 4 plaintiffs were non suited. Aggrieved by the judgment and decree of the trial court plaintiffs filed appeal in the Court of District Judge, Gurdaspur and vide judgment and order dated 4.8.1986, the judgment and decree of the trial Court was set aside for the reasons given in para Nos. 7 and 8 of the judgment:

"The learned counsel for the appellants has assailed the finding of the Court below on the ground that the learned court below has erred in disposing of the whole case while treating issues 3, 4 and 5 as preliminary issues. He has vehemently argued that the learned court below recorded the evidence on these issues and thereafter on the basis of evidence led by both the parties he gave his verdict on the issues. He has stated that since the issues have been decided after recording the evidence of the parties the learned trial court could not dispose of the whole case by treating these issues as preliminary. I agree with the arguments of the learned counsel. It is settled law that when the parties are allowed to lead evidence on the preliminary issues and the evidence is led by them and on the basis of the same the issue is decided, it loses its character of a preliminarily issue and the court has to decide the case on all merits and on all the issues. Undisputedly the court below, by way of treating issues 3, 4 and 5 as preliminary issues disposed of the case basing the decision on the same leaving issues 1 and 2 untouched which is against the settled law. He should have disposed of the case on merits by way of deciding all the issues in accordance with law.

For the foregoing reasons I set aside the judgment and decree under appeal and remand the case back to the learned Sub Judge, 1st Class, Pathankot (Shri Dalip Singh) with the direction that he should decide the case on merits by dealing with all the issues in accordance with law and pass a fresh judgment and decree. The appeal is accepted. The parties are left to bear their own costs."

Aggrieved by the order dated 4.8.1986 passed by the Court of Addl. District Judge, Gurdaspur, the present appeal by the defendants, which I am disposing of with the assistance rendered by Mr. Rajive Bhalla, learned counsel appearing on behalf of the appellants. Nobody appearing on behalf of the respondents.

Learned counsel for the appellants submitted that the attack made by the plaintiffs was to the judgment and decree dated 12.10.1983. That decree could only be challenged by the plaintiffs in an appeal which was never filed. So much so the Decree Holder i.e. the defendants filed an application before the executing Court for the passing of the final decree which has already been passed. Further before passing of the final decree, the court appointed a local commissioner who gave the report about the partition of the property. The objections of the parties were called. Those objections were taken note of and thus the final decree was passed which was challenged by the plaintiffs in the appellate court and also in the High Court. Against those objections the plaintiffs even filed revision before the High Court but it was dismissed. As a result the final decree was passed it has already been implemented by the executing court. In these circumstances, the impugned order dated 4.8.1986 passed by the Court of Addl. District Judge, Gurdaspur cannot sustain in the eyes of law. He submits that subsequent events can be taken note of by the High Court. Even otherwise learned counsel for the appellants submits that the order dated 4.8.1986 passed by the court of Addl. District Judge is not sustain-able because the trial court had decided purely question of law after taking into consideration the pleadings of the earlier suit which was decreed on on 12.10.1983. Again I find merit in the contention raised by the learned counsel for the appellant. If we examine the nature of issues No. 3 and 4, hardly and evidence was required on these issues. So far as issue No. 4 was concerned, the parties could only lead the documentary evidence on pleadings of the earlier suit. Those were placed before the trial court nevertheless the issues u/O. 2 Rule 2 CPC and u/O 11 of the CPC will be a question of law, on the basis of which the suit of the plaintiffs respondents could be disposed of. The trial court rightly took into consideration the pleadings of the parties of the earlier suit and came to the conclusion that the plaintiff respondents cannot challenge the judgment and decree dated 12.10.1983 and suit was rightly dismissed Reasons which have been advanced by the learned Appellate Court are not convincing. Even on pure question of law parties can be afforded to lead such evidence in support of their legal plea also. More over, in the opinion of this Court the suit of the plaintiffs was not legally sustainable. They can only challenge the preliminary decree dated 12.10.1983 by way of appeal and could take all possible objections which have been taken by them in the appeal against the judgment and deuces dated 12.10.1983. The plaintiffs did not take the opportunity to challenge that judgment or decree and they had come with a suit which was prima facie not legally maintainable and the legal plea can always be taken up by the defendant at any stage. Resultantly, I accept this appeal and set aside the judgment dated 4.8.1986 and declare that plaintiffs have been rightly non-suited by the trial court be deciding is sues No. 3 and 4 against them.

No order as to costs.