Ramdayal Umraomal vs Pannalal Jagannathji (Firm)

Shiv Dayal, C.J.—The learned Single judge has referred the following question for our opinion:

Whether an issue relating to jurisdiction of the trial Court, which requires the taking of some evidence, has to be decided as a preliminary issue or not

It appears from the order of reference that the learned Single Judge found some conflict between two Single Bench decisions in Balchand Meghraj Pamnani and Another Vs. Basantidewi Ramswaroop and Another, and Mohansingh v. Sampatbai & Ors. Civil Rivision No. 252 of 1974 decided on 12-11-1974 although in both these decisions a reference has been made to Major S.S. Khanna v. Brig. F.J. Dillon A I R 1965 S C 497.

The learned counsel for both the sides have placed before us several decisions of this Court and other High Courts and also an unreported decision of A.P. Sen J. in Civil Revision No. 524 of 1973 Gordhandas v. Lalsingh.

Having gone through all these decisions, we find that there is a debate as to the jurisdiction of the trial Court to try the question of jurisdiction when the question cannot be decided without recording evidence on it, otherwise generally the Courts are agreed that the question of jurisdiction must be decided first. Now the requirement of evidence to be taken may arise in different situations, which may be categorised as follows:--

(1) Pure questions of law, which are preliminary i. e. which would go to the root of the case and on their decision the suit may be disposed of;

(2) Mixed questions of law and fact, which are preliminary in nature and may result in the disposal of the suit;

(3) Pure questions of law, which may not be preliminary i. e. which may not dispose of the entire suit; and

(4) Questions of law which are mixed with facts, on which facts there are independent issues of fact to be tried.

Since the question of jurisdiction is one which goes to the root of the matter if it is not decided at the earliest opportunity, it may cause unnecessary expense and harassment to the parties. It is the requirement of the law that the question of jurisdiction must be decided first, as a preliminary issue. If however, some evidence is to be recorded before the question of jurisdiction can be disposed of, that also the Court can do. But where an independent issue of fact has to be determined, on which the question of jurisdiction depends so that the question of jurisdiction cannot be decided without such other independent issue of fact being decided, to record evidence on the question of jurisdiction will be to record evidence on that fact for which there is an independent issue. Such lopsided trial, as their Lordships have held in Major S.S. Khanna v. Brig. F.J. Dillon (Supra) is not permissible. We are, therefore, of the opinion that the questions of the first two categories should be decided as preliminary issues without proceeding with the trial of other issues. How-ever, in the case of the third category, it is not necessary to decide the question of law as a preliminary issue because it will not dispose of the entire suit and, therefore, it must await the stage of the final decision of the suit. In the case of the fourth category, decision of the question has to be postponed and it cannot be tried as a preliminary issue. "Such was the situation in Major S.S. Khanna v. Brig. F.J. Dillon (Supra)". The view that we take does not run counter to the view taken by A.P. Sen J. in Gordhandas v. Lalsingh (Civil Revision No. 524 of 1973), or Vishnu Saw Mills v. Vithal Rao Ramdas v. Navin Chandra 1973 J L J Note 59, Firm Ramrichpal v. Firm M/s Mahabir Trading Co. 1974 J L J Note 45, Dr. Krishnamurthy v. Smt. Bhagwanidevi 1967 J L J Note 57 , Santoshchandra and Others Vs. Smt. Gyansundarbai and Others, Balchand v. Basantidevi (in the order of reference to Tare J. as he then was), Ramsharandas v. Motilal 1975 M P L J 43 , Resham Lal and Others Vs. Anand Sarup and Another, , Ghatmal Champala Vs. Amaravathi Dyeing Private Ltd., and Fazlehussein Haiderbhoy Buxamusa and Others Vs. Yusufally Adamji and Others,

We may, however, make a particular reference to the decision in Dr. Krishnamurthiv. Smt. Bhagwanidevi (supra) decided by Pande J. He has further referred to Rule 145 (2) of the Rules and Orders (Civil) made by this Court. In Fazalhussein v. Yusufally Adamji (supra) Mr. Justice J.C. Shah (as his Lordship then was) held thus --

In considering the preliminary issue the Court must look to the averments in the plaint and consider any objections which the defendants may choose to raise against the maintainability of the action on these averments. The question of jurisdiction which is raised by way of a demurrer has always to be decided on the allegations made in the plaint and not on the contentions that the defendants may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is convassed, the parties may lead evidence in support of their respecttive cases before the preliminary issue as to the jurisdiction of the Court is decided.

This decision deserves great respect and we respectfully concur with what has been said therein.

We are aware of a decision by the Allahabad High Court in Estrela Batteries Ltd. Vs. Modi Industries Ltd., . There it has been observed that "where the question of jurisdiction of the Court to entertain the suit involves mixed questions of law and fact, it cannot be decided as a preliminary issue, under Order 14, Rule 3, when there is no material on record to decide it." If, we may say with respect, having regard to the fact stated this principle laid down in the Allahabad case falls within the purview of the fourth of the categories enumerated above. If, however, it was intended to be laid down that just because any evidence becomes necessary to be recorded, the determination of question of jurisdiction ceases to be a preliminary issue, we respectfully beg to differ.

There was some argument before us whether when the trial Court has decided not to dispose of the question of jurisdiction as a preliminary issue, this Court can interfere in revision. In our opinion, the point is concluded by their Lordships in Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, , Roshan Lal Mehra Vs. Ishwar Das, Pandurang Dhondi v. Maruti Hari A I R 1968 S C 153 and S. Rama Iyer v. Sunderasa A I R 1968 S C 1431. In Pandurang Dhondi v. Maruti Hari (supra), Gajendragadkar C.J. has, if we may say so with greater respect, succinctly laid down the rule as follows:--

While exercising its jurisdiction u/s 115 it is not competent to the High Court to correct errors of fact however, gross they may be or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself " "That point of law may arise in proceedings instituted before the subordinate Courts, which are related to the question of jurisdiction. It is well settled that a plea of limitation or a plea of res-judicata is a plea of law which concerns the jurisdiction of a Court which tries the proceeding A finding on this plea in favour of the party would oust the jurisdiction of the Court and, so an erroneous decision on these pleas can be said to, be concerned with the question of jurisdiction, which fall within the purview of Section 115 of the Code. But an erroneous decision of a question of law by the subordinate Court which has no relation to the questions of jurisdiction of that Court cannot be corrected by the High Court u/s 115.

The learned counsel for the non-petitioner endevoured to tell us that having regard to the facts and circumstances of this case from which this revision arises, the question of jurisdiction cannot be decided as a preliminary issue. That, in our opinion will be a question to be considered by the learned Single Judge, who will deal with this particular case. We are merely called upon to express our opinion on the question referred to us.

Accordingly, we answer the reference as in paragraphs 4 and 5 above.