Shri Ram Kumar vs Parshotam Dass and Sons

Chet Ram Thakur, J.—This revision petition has arisen out of an order dated 4-12-1972 passed by the Senior Sub-Judge, Solan, in suit No. 38/1 of 1970 whereby the following issue No. 6 framed on 23-10-1970 was treated as preliminary issue:

Whehter in view of the rent-note placed on the file the Defendant is estoppesd from questioning the title of the Plaintiff to the suit property?

The suit was instituted by Parshotam Dass on 16-4-1970 for ejectment of Ram Kumar Defendant from the ground floor of shop No. 25 in Chowk Bazar, Garkhal and for recovery of Rs. 150 as compensation for use and occupation of the said premises. The Defendant put in his written statement and on 1-7-1970 the following issues were settled on the pleadings of the parties:

Whether the Plaintiffs issued a valid and legal notice to the Defendant u/s 106 T.P. Act? (OPP)

Whether the plain tiff is entitled to the recovery of Rs. 150 as arrears of rent? (OPP)

Whether the plaint is bad for bad particulars?

Relief. (OPD)

The Plaintiffs closed evidence on 11-8-1970. The Defendant was granted several adjournments to produce his evidence but somehow or the other the witnesses could not be served and in between the Defendant filed an application under Order 6 Rule 17 read with Section 151 of the CPC for permission to amend the written statement so as to take a plea in substantiation of the previous plea already taken that the sale deed by virtue of which the Plaintiffs became owners of the property in suit is void. This application was allowed by an order dated 28-9-1072 necessitating the framing of two additional issues out of which one is issue No. 6, already noted above. Thereafter the Defendant was asked to produce his evidence on 19-11-1972. The Plaintiffs put in an application purporting to be one u/s 151 of the CPC for decision on the newly framed issue No. 6 first, as it was legal and no evidence was necessary on the same. This application, was allowed by the learned Senior Sub-Judge by the impugned order.

The learned Counsel for the Respondent has taken up a preliminary objection that the revision petition is not competent inasmuch as this is not a case decided, within the meaning of Section 115 of the CPC and reliance is placed on Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, in which the trial Court had over-ruled an objection to a certain question put to a witness and against that order over-ruling the objection, one of the parties went in revision and it was held by their Lordships as under:

The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. The expression ''case'' is a word of comprehensive import; it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceeding in a civil Court. To interpret the expression ''case'' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But every order of the court in the course of a suit does not amount to a case decided. A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in the controversy; every order in the suit cannot be regarded as a ''case decided'' within the meaning of Section 115.

On the other hand the learned Counsel for the Respondent has relied on Major S.S. Khanna Vs. Brig. F.J. Dillon, where it was held that:

The expression ''case'' is a word of comprehensive import it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression ''case'' as an entire proceedings only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression "case'' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.

Once it is granted that the expression ''case'' includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit.

In both these authorities the principle evolved is that the expression "case" is a word of comprehensive import; it includes civil proceedings and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceedings in a civil court. In the instant case what the court has done is that it passed an order that issue No. 6 which was framed after the conclusion of the evidence of the Plaintiffs was ordered to be treated as preliminary and that the decision on issue No. 6 would be given first. Order 14 Rule 2 of the CPC says that where the question to be decided by the Court is a pure question of law the Court may try that issue as a preliminary issue and may postpone the settlement of the issues of fact until after the issues of law have been determined. This rule undoubtedly is mandatory. In the present case, first the issues on merits were framed and the Plaintiffs had even concluded their evidence and the Defendant was called upon to produce his evidence and thereafter the Defendant put in an application for amendment which was allowed and two fresh additional issues Nos. 5 and 6 were framed and the Court on the application of the Plaintiffs ordered that issue No. 6 shall be treated as a preliminary issue. Therefore, in these circumstances the provisions of Order 14 Rule 2 will not be applicable in this case because all the issues had been framed and had been tried when the additional issue which is now ordered to be treated as preliminary was framed. In this view of the matter the Court cannot treat this issue as a preliminary issue and this, in my opinion, is clearly a case decided as it is a part of the same civil proceeding. Consequently this preliminary objection is over-ruled.

A perusal of Rule 2 of Order 14 shows that when there are issues of law, arising in a suit and the suit or any part thereof is capable of being disposed of on such issues of law only, it is obligatory on the Court to try such issues of law as preliminary issues and it may in that case postpone the settlement of issues of fact until after the issues on law have been determined. It would, therefore, follow that trying issues of law before those of fact only will come into operation at the first hearing of the suit. In the case in hand not only issues of law and fact have been settled but the Plaintiffs had also long before concluded their evidence on the issues other than the two additional issues. Therefore, it cannot now be said that issue No. 6 must be tried first as a preliminary issue when the Plaintiffs have already concluded their evidence and the Defendant has to lead his evidence, no matter, the Defendant has been negligent in adducing his evidence but that cannot be a ground to try the additional issue framed now after the conclusion of the Plaintiffs'' evidence as a preliminary issue even though it is a question of law. According to Smt. Sarojini Roy and Another Vs. Shivaram Poddar and Others,

Order 14, Rule 2, CPC applies at an earlier stage of the proceeding, when the issues have to be framed, and authorises the court to deal with the issue of law first, if the court is of opinion that the decision of that issue will dispose of the case.

In the instant case that stage has since passed and there was no point in trying the additional issue as a preliminary issue and, therefore, the trial Court has not exercised its discretion rightly in ordering the trial of issue No. 6 as a preliminary issue and it has committed irregularity in the exercise of its jurisdiction.

The learned Counsel for the Plaintiff-Respondents had urged that in this case the question was of estoppal, which was a pure question of law, and that decided the jate of the case. But I have already dealt with this point in my discussion on the preliminary objection and I am of the view that this issue cannot be treated as a preliminary issue at such a belated stage in the circumstances of this case. Therefore, the authorities relied upon by the learned Counsel for the Respondents that the fate of the suit could be decided on this issue alone, as it was a legal issue, need not be mentioned.

Consequently, the result is that the revision petition succeeds and is hereby allowed. The order of the trial Court is set aside and it is directed that it shall proceed with the trial of all the issues and dispose of the case at an early date. Parties are directed to appear before the trial Court on 17-9-73.

In the circumstances of the case, the parties are left to bear their own costs.