Meharban and Another vs Punjab Wakf Board and Another

Sat Pal, J.—This petition has been directed against the order dated 20.3.1997 passed by Additional Civil Judge (SD) Panipat. By this order, the learned trial Court has dismissed the application filed by the defendants for treating issue No. 2 as a preliminary issue. Issue No. 2 is to the effect that the suit is barred by principle of resjudicala. Notice of this petition was issued to the respondents.

Mr. Battas, the learned counsel appearing on behalf of the petitioners submitted that the respondent Wakf Board had earlier filed a suit for possession on 21.3.1972 and the said suit was dismissed vide judgment and decree dated 13.11.1972. He further submitted that the appeal filed by the Wakf Board was, however, allowed by the lower appellate Court vide judgment dated 28.2.1974, but Regular Second Appeal filed by the petitioners and others was allowed by the High Court vide judgment dated 25.1.1983. It was held by the High Court that the Wakf Board had no locus standi to file the suit. He further submitted that SLP filed by the Wakf Board was dismissed by the Supreme Court vide judgment dated 9.12.1985. The learned counsel submitted that the present suit has again been filed for the recovery of possession against the petitioners on 25.8.1989. He submitted that in the written statement filed on behalf of the petitioners-defendants, inter alia, it has been stated that the present suit was barred by the principle of res judicata, and issue No. 2, has been framed on this point. The learned counsel submitted that since the plea of resjudicata is a plea of law, an application was filed before the learned trial Court for treating this issue as a preliminary issue but the re quest has been rejected by the learned trial Court by the order dated 20.3.1997 which has been impugned in this petition. The learned counsel submitted that the said order was contrary to the provisions of Order 14, Rule 2 and the law laid down by various High Courts. In support of his submissions, the learned counsel placed reliance on two judgments of this Court in The Punjab State Cooperative Milk Producers Federation Limited (Milkfed) Vs. M.M. Munjal, , decided on 22.4.1997, and a judgment of Calcutta High Court in Smt. Laxmi Mani Dasi Vs. Manik Chandra Das, .

Mr. Kapoor the learned Senior Counsel appearing on behalf of the respondents, however, submitted that in the earlier litigation it was held by this Court that till appointment of trustees, the properly in dispute vested in custodian and as such Wakf Board had no locus-standi to file the suit. He, however, submitted that after the law has been amended in the year 1995, the Wakf Board is competent to file the suit. The learned counsel further submitted that in para 5 of the grounds of revision the petitioners themselves have admitted that the proof of res-judicata requires some evidence and since the said issue could not be decided without the evidence of parties, the same could not be decided as a preliminary issue. In support of his submission the learned counsel placed reliance on two judgments of this Court in Hardwari Lal v. Pokhar Mal and Ors. (1978)80 P.L.R. 252 and Ram Kali and Ors. v. Sohan Lal 1984 P.L.J. 600.

The learned counsel further submitted that in the present case the learned trial Court keeping in view the facts of the case has held that the issue No. 2 pertaining to the point of resjudicata can not be decided without receiving the evidence and once the learned trial Court had exercised the jurisdiction in accordance with law, this court should not interfere in its jurisdiction u/s 115 C.P.C. In support of this submission, learned counsel has placed reliance on two judgments of this Court in Surinder Pal Singh and Anr. v. Pawanveer Kaur and Ors. 1989 P.L.J. 512 and Bharat Petroleum Corporation Limited Ballard Estate and Another Vs. Sat Parkash Amar Singh, .

I have given my thoughtful consideration to the submissions made by the learned counsel of the parties and have perused the impugned order. Before dealing with the rival contentions urged by the learned counsel of the parties, it will be relevant to refer to Order 14 Rule 2 C.P.C. which reads as under.-

Order 14 Rule 2

"(1) Not withstanding 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."

From Order 14, Rule 2 it is clear that if the Court is of opinion that the case or part thereof may be disposed of on an issue of taw only it may try that issue first if that issue relates to either jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Issue No. 2 framed in the present suit will fall under Sub-rule (2)(b) as it is to the effect "whether the suit is barred by principle of resjudicata?" In Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, , a Constitution Bench of the Supreme Court held that a plea of resjudicata was a plea of law which concerns the jurisdiction of the Court which tries the proceedings. In this view of the matter it becomes clear that the issue with regard to resjudicata can be treated as a preliminary issue under Order 14 Rule 2(2) even if it involves production of evidence by the parties. The view I have taken finds full support from a decision of this Court in the case of Uggar Sen, (supra).

For the reasons recorded herein above, the petition is allowed and the impugned order dated 20.3,1997 passed by the learned trial Court is set aside. Consequently, the application filed by the petitioner-defendants before the learned trial Court for treating issue No. 2 as preliminary issue stands allowed. The parties are, left to bear their own costs.