M. Appala Narasiah and Others vs Arjuno Jena and Others

S.K. Ray, J.—Defendants are the Petitioners.

Previously about 10 years ago, one Udayanath Jena and opposite parties 1 and 2 had filed Title Suit No. 301 of 1963 against the present Petitioners and their deceased father for a declaration that the identical land of the present suit was in their exclusive possession, and for a permanent injunction restraining the present Defendants who were also Defendants in that suit and their father from entering upon the suit land. In that suit, the Defendants pleaded that they were in adverse possession of the suit land and that the Plaintiffs had 00 subsisting title to the same and that the suit was not maintainable. That suit was decreed by the trail Court, but on appeal, the first appellate Court reversed the decision of the trial Court and dismissed the suit. Udayanath Jena and opposite parties 1 and 2 filed Second Appeal, No. 388 of 1965 in this Court. During the pendency of the Second Appeal, Udayanath Jena having died, his legal representatives, opposite parties 3 and 4, were added as legal representatives. Ultimately, the Second Appeal was dismissed.

Opposite parties 1 to 4 have filed the present Title Suit No. 128 of 1973 in the Court of the Munsif, Berhampur in respect of 60 cents in Survey No. 52 appertaining to patta No. 37 of Kodasinge village for declaration of their title, for confirmation of possession or in the alternative for recovery of possession. The present Petitioners filed their written statement in which on of the pleas, inter alia, is that the suit is barred by res judicata.

Six issues-have been stuck, two of which are:

Whether the decision in T.A. 60/65 of Additional Sub Court dated 21-7-1965 operates as res judicata and as such the present suit cannot be tried?

Whether the order of dismissal of S.A. 388/65 (High Court) dated 2-9-1970 has the effect of making the lower appellate Court''s decision in T.A. 60/65 dated 21-7-1965, final and conclusive between the parties and their representatives and as such, the present suit cannot be entertained?

Defendants filed an application under Order 14 Rule 2 CPC to dispose of the suit on the preliminary issue No. 3 relating to res judicata. The application was opposed by the Plaintiffs.

The learned trial Court by his order dated 13-4-1974 dismissed this application. Though he held that the Issue relating to res judicata is one of the issues in the suit, but if this issue is tried first leaving the other issues undecided. there may be scope for multiplicity of proceedings as the case may be subject to remand for times without number and that the parties to the suit may be put to unnecessary expenses and harassment. Being aggrieved by this order, the aforesaid Civil Revision has been filed by the Defendants.

Order 14 Rule 2 reads'' as follows: "Issue of law and of fact: 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. "

On a plain reading of this rule it is clear that this provision is mandatory when the conditions are fulfilled. Where clear cut issues of law are presented, the Court must decide those issues first.

That Order 14 Rule 2 is mandatory, I think, is almost universally recognised (See the cases of Janki Das and Another Vs. Kalu Ram and Another, , P.C. Gangulee Vs. Sm. Kadhuri Devi, , Partap Singh Kairon Vs. Gurmej Singh, , and Udmi Ram-Ram Sarup Vs. Ghasi Ram-Sakhan Lal . I had not been shown any contrary decision negativing the mandatory character of this provision of law.

To attract Order 14 Rule 2, CPC the Court must be of opinion that the case or any part thereof may be disposed of on the issue of law only. The apparent purpose of this rule is that where the entire case or part of it can be disposed of by determining an issue of law, it shall be so done as that will save unnecessary inconvenience and expenses to the parties and waste of time and labour of the Court as well. Therefore, if these preconditions embodied in this rule are fulfilled, there is no option other than to try that issue of law as a preliminary issue.

The learned Munsif has essentially came to the conclusion that the w hole case may be disposed of on the issue of res judicata only. But he thinks that there is a possibility of multiplicity of proceedings if the issue of res judicata is taken up first and decided alone, as the case may be subject to frequent remands. He has failed to see that possibility is always there whenever Order 14, Rule 2 is applied and any issue of law is decided in the first instance. It is, therefore, clear that this hypothetical possibility at remand cannot constitute a valid ground for refusing to apply Order 14, Rule 2. The Rule, as already stated, is mandatory. After coming to conclusion as to the existence of pre-conditions, there was no option left to the trial Court except to try the issue of law of res judicata as a preliminary issue. The basic facts on which the issue at res judicata has been framed after all admitted in the plaint. For adjudication of this issue all that the parties are required to prove are the admitted pleadings and the judgments of the different Courts in the prior litigation.

The plea of res judicata is a plea of law which concerns the jurisdiction of the Court See the case of The Sree Meenakshi Mills, Ltd. Vs. Their Workmen, . If the plea of res judicata is upheld the Court would have no jurisdiction to try the present suit. In other word, it will mean a complete disposal of the suit by dismissing It as unentertainable in a civil Court by reason of Section 11, CPC Code. This is, therefore, pre-eminently a case which calls 101 disposal of this issue of res judicata preliminarily so that the parties maybe saved from unnecessary expenses and harassment and that the Court''s time may not be wasted in fruitless labour in adjudicating upon other issues of fact. Identical opinion was expressed in the case of M.V. Narasamma Vs. M. Venkataratnam, . In refusing to decide the issue of res judicata as a preliminary issue, the learned Munsif has patently refused to exercise his patent jurisdiction.

The learned Munsif has felt bound by a decision of this Court in the case of Ram Saraf Vs. Mani Dei and Another, . That is a single Judge decision by Justice G.K. Misra (as the learned Judge then was). One of the issues which was sought to be preliminarily tried was as to maintainability of the suit on the ground of limitation under Order 2, Rule 2, CPC Code. The other Important issues were of constructive res judicata. In that cases it has been laid down that the suit must be tried as a whole and not piece-meal unless it involves question of jurisdiction. In other words, it says that an issue which involves question of jurisdiction must be tried as a preliminary issue under Order 14, Rule 2. Applying that dictum to the present case, issue of res judicata which, as held by the Supreme Court already referred to above, is a plea of law concerning the jurisdiction of the Court, is to be tried as a preliminary issue. The observation in this decision, "But in all other matters it is always desirable that the cases should be tried as whole is not laying down a doctrine or principle of law on the interpretation of Order 14, Rule 2 and its scope. This wide observation cannot be regarded as whittling down the earlier dictum that the suit must be tried as a whole unless It involves the question of jurisdiction. In my view this decision does not lay down any contrary law to be applied.

As a result of the foregoing discussion, I would set aside the order of the Munsif and direct him, to try the issue or Issues of res judicata as a preliminary issue.

In result, therefore, the Civil Revision is allowed with costs which is assessed at two gold mohurs.

Send back the records at once as the trial of the suit has been long delayed.