Shri Hardev Singh Sodhi vs Smt. Usha Trehan

V.S. Aggarwal, J.—This is a revision petition filed by Hardev Singh Sodhi (hereinafter described as ''the petitioner'') directed against the order passed by the learned Civil Judge (Sr. Division), Amritsar dated 22.7.1998. By virtue of the impugned order, the learned trial Court refused to treat the issue pertaining to territorial jurisdiction of the Court as a preliminary issue.

The relevant facts are that respondent - Smt. Usha Trehan had filed a civil suit for recovery of Rs. 7,99,800/- against the petitioner. It was asserted that the petitioner approached the plaintiff-respondent to start the export and other business in partnership. The respondent alleged that petitioner assured that he will convert his partnership by entering into a regular partnership with the respondent. The petitioner took from the respondent-plaintiff a sum of Rs. 6 lacs. Rs. 2 lacs were paid vide a draft payable at New Delhi on 17.6.1994 and the remaining amount was paid vide draft amounting to Rs. 4 lacs dated 18.6.1994. Thereafter, the petitioner did not take the respondent into business nor any partnership deed was executed. The amount paid was not returned. In paragraph 7 the respondent pleaded:-

"That the cause of action arose to the plaintiff on 17.6.1994 when a sum of Rs. 2,00,000/- was paid to defendant on 20.6.1994 when the sum of Rs. 400,000/were paid to defendant and subsequently on the dates, defendant refused to pay the amount to the plaintiff. The cause of action arose to the plaintiff at Amritsar where defendant had demanded money from the plaintiff and where accepting defendant''s offer amount as given to the defendant through the Banks. Accordingly, the Civil Courts at Amritsar have territorial jurisdiction to entertain and try this suit."

The civil suit has been contested and the petitioner in the written statement besides other pleas, took up the objection that the civil courts at Amritsar have no jurisdiction to entertain the suit. It was asserted that as per assertions in the plaint, no cause of action has arisen within the territorial jurisdiction of courts at Amritsar. The petitioner resides at Delhi and he does not carry on any business at Amritsar.

The learned Trial Court had framed the issues.

The petitioner submitted an application pertaining to the territorial jurisdiction as a preliminary issue. The trial Court held that this question cannot be decided without recording of evidence and the application was dismissed. Hence, the present revision petition.

On behalf of the petitioner it was urged that as per assertions in the plaint, the payment was made at Delhi. The petitioner also carries on business at Delhi and Paragraph 7 was not verified to the knowledge of the respondent and thus the civil court at Amritsar has no jurisdiction to entertain the suit.

7 In this regard reference can well be made to the provisions of the Code of Civil Procedure. Under Order 14, Rule 1 of the Code of Civil Procedure, an issue arises where material proposition of fact or law is affirmed by the one party and denied by the other. Order 14, Rule 1, sub-rule (4) describes the issues to be of two kinds namely, one of the fact and the other of law. Order 14, Rule 2 reads:

"2. Court to pronounce judgment on all issues,- (i) 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 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 issue until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

It is abundantly clear from perusal of Order 14, Rule 2, CPC that Court has to pronounce the judgment subject to provisions of sub-rule (2) on all the issues. Under sub-rule (2) of Order 14, Rule 2, if the Court is of the opinion that any part can be disposed of, it can try it at the first instance as a preliminary issue.

The short question that arises for consideration is as to whether it is obligatory on the part of the Court to treat the said issue as preliminary issue or not? The Bombay High Court in the case of Usha Sales Ltd. Vs. Malcolm Gomes and Others, onsidered this question and held that it is the discretion of the court and in paragraphs 11 and 12 the Court concluded:-

"11. From the above it is easily seen that there is an obligation cast upon the Court that even though a case may be disposed of on a preliminary issue the Courts shall subject to the provision of Sub-rule (2) pronounce judgment on all issues. In other words, the obligation to decide a question of law as a preliminary issue if that decision disposes of the case or part of the case is no longer there. Similarly, the discretion to decide any other issue as a preliminary issue has been taken away totally from the Court. On the other hand, a duty is cast upon the Court that it must proceed to hear all the issues and pronounce judgment on the same.

There is, however, a small exception carved out to the above provision. The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try any issue despite the provision contained in Sub-Rule (2) of Rule 2 of Order 14 of the Code the words "it may try" are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue".

A Full. Bench of the Allahabad High Court in the decision rendered in the case of Sunni Central Waqf Board and others Vs. Gopal ingh Vishrad and others, has also looked into the same controversy. The amendment in Order 14, Rule 2 in the CPC was noted. It was held that word "shall" has been substituted by the word "may" and it is the discretion of the Court to treat the issue as a preliminary issue or not. In paragraph 11 the Court held:-

"The word "shall" used in old Order 14, Rule 2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue."

A Division Bench of this Court also in the case of Bhag Singh and Others Vs. Nek Singh and Others, concluded that plea regarding the jurisdiction of the civil court is a mixed question of law and fact and parties should be given an opportunity to lead the evidence. When such is the position, there is no jurisdiction for treating the said issue as a preliminary issue, same is the position herein. It is a mixed question of law and fact if the courts at Amritsar have the jurisdiction to try the suit or not. The trial Court, therefore, rightly exercised the jurisdiction and did not treat the said issue as a preliminary issue.

As regards the defect in the pleadings, particularly paragraph 7 of the plaint is concerned at this stage, no opinion is being expressed. It is entirely for the trail Court to go into the said fact and draw necessary inferences. Any expression of opinion at the preliminary stage would only be embarrassing the either party.

There is another way of looking at the matter. Unless the discretion exercised by the Court is arbitrary, the High Court in its revisional jurisdiction will not interfere. The trial Court has to be given the latitude to decide the suits unless injustice is caused or discretion is exercised arbitrarily. There is seemingly no jurisdictional error in the present case. The Karnataka High Court in the case of M.D. Nanjundaswamy Vs. Basic Education Society (R) and others, looked into this controversy and held:-

"This Court is of the view that the trial Court must have a great deal of latitude in conducting the trial and decide the issues and this Court may not lightly interfere with that discretion, merely because one of the parties to the suit is displeased with the procedure adopted by the Court unless it is demonstrated that such procedure is likely to result in injustice."

Same view was expressed by the Kerala High Court in the case of Mary and Another Vs. Mathew Joseph and Others, . It was held that it will not be appropriate to interfere in such discretions exercised by the Trial Court. Identical is the position herein. The trial Court felt that matter requires evidence and it will not be appropriate to treat the issue as a preliminary issue. Thus, there is no ground to interfere in the said discretion.

For these reasons, the revision petition must fail and is dismissed.