Md. Ismail vs Salma Khatoon And Ors

This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 19.07.2018 passed in Title Suit No.229/2012 has been assailed, the petitioner seeking therein prayer to first decide the maintainability of the suit by framing preliminary issue to that effect but the said petition has been rejected vide impugned order, therefore, the instant writ petition has been filed.

It is the brief facts of the of the case of the petitioner and as per the pleading made in the writ petition is that a suit has been filed by the plaintiff/respondent No.1 herein, for declaration of right, title, interest and possession over the schedule-B lands whereas none of the defendants have any right title and possession over there and the construction of house over schedule-B land, if any made by the defendant, should be demolished through the process of the court and the plaintiff be put in possession.

Nowhere appears from the pleading made as to whether the notice has been issued or not, but one petition has been filed by the petitioner who is the defendant No.1 to the suit on 18.09.2015 making therein an objection to the maintainability of the suit on the ground of relinquishment right by the ancestors of the plaintiff and to that effect decree has been passed in Title Suit No.58/84 confirmed in Title Appeal No.34 of 1988 but the trial court has rejected the petition, the suit was decreed against the one Puniya Devi and she filed title appeal for impleadment of ancestors of the plaintiff and the seller of the property and being the judgment debtor an appeal filed by Puniya Devi which was decreed and compromised in terms of the relinquishment of the right but the trial court having rejected the said petition, hence the writ petition.

Mr. Afaque Ahmad, learned counsel appearing for the petitioner, has submitted that the trial court has committed gross illegality in passing the order by not considering the scope and object under Order XIV Rule 2 of the Code of Civil Procedure which confers power upon the trial court to decide the issue even by way of preliminary issue so that there may not be any frivolous trial.

This Court after having heard the learned counsel for the petitioner and after going across the pleading made as also finding recorded in the impugned order, deem it fit and proper to refer the provision of Order XIV Rule 2 of the C.P.C. which reads hereunder as:

"[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 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 issu relates to-

(a) the jurisdiction of Court, or

(b) a bar to the suit created by any law for time being in force,

And for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue have been determined, and may deal with the suit in accordance with the decision on that issue.]

It is evident from the provision as referred hereinabove 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.

The sub-rule (2) provides that 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 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 provision specifically provides that an issue can be framed by way of preliminary issue if there is issue of law only, i.e. jurisdiction of the Court or bar to the suit created by any law for the time being in force but it pertains to the issues of both law and fact all the issues are to be framed and to be answered by the trial court by considering the factual aspect which will be brought on record before the concerned trial court.

The fact of the case in hand is that the defendant No.1 to the suit is questioning the maintainability of the suit on the ground that there is compromise basis upon which, the decree has been passed, by which the ancestors of the plaintiff has relinquished the right over the property in question, therefore, contrary to the said relinquishment the plaintiff cannot come forward for getting the dispute adjudicating by getting a declaration of right and title over the same landed property.

This admitted case of the petitioner suggests that the same does relate to an issue of law rather it will be said to be issues on both fact and law, therefore, the reliance as has been placed by the petitioner upon the provision of Order XIV Rule 2 of the C.P.C. is to misconceive since it is the case of the petitioner that the relinquishment is being discarded by the plaintiff as has been decreed by way of title appeal, therefore, the same pertains purely on fact and therefore, it is not a case to be covered under the provision of Order XIV Rule 2 of the C.P.C.

The trial Court has taken into consideration this aspect of the matter and in addition to that the trial court has also recorded that there is no issue regarding the jurisdiction of the court or a bar created by any law and the objection raised by the defendant, is not pertaining to the said issues questioning the maintainability of the suit, therefore, according to the considered view of this Court order impugned does not warrant any interference under its revisional jurisdictional as conferred under Article 227 of the Constitution of India.

In view thereof, this writ petition fails and is dismissed.