Simplex Hosiery Factory and another vs Chanchal Kumari and others

S.P. Goyal, J.—This judgment will dispose of two petitions (Civil Revision Nos. 2 and 385 of 1979) as they involve a common question of law For the purpose of this case facts in Civil Revision No 2 of 1979 have been noticed.

Smt Chanchal Kumari Respondent, filed a suit against the Petitioners for realization of Rs. 83,056 which was contested by the de fendant Petitioners. A number of issues were framed and one of the issues framed was that of limitation. After Smt Chanchal Kumari, Plaintiff. had closed her evidence and the suit was fixed for evidence of the Defendants, an application was moved by the latter that the issue of limitation alone may be decided firs(sic) as the Defendants were not to lead any evidence on that issue. This application was declined by the trial Court, vide order dated December 22, 1978. Dissatisfied with that order, the Defendants have filed the present petition

From the perusal of the impugned order it appears that in the trial Court, the application was moved under Order 14 Rule 2, C P. C. but before me Mr hapirath(sic) case(sic), the learned Counsel for the peti-tioners-relied on the provisions of Order 15, Rule 3, Code of Civil Pro-dure, in support of the application. The said Rule 3 provides that where the parties are at issue on some question of law or fact and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce, is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may preceed to determine such issues, and if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit: provided that here(sic) the summons has been issusd for the settlement of issues only, the parties or their pleaders are present and none of them objects. Though from the plain reading of this rule, it appears that its provisions can be invoked only on the first date of the hearing when the issues are settled but there appears to be some conflict in the various High Courts on the question as to whether its provisions can be invoked also at some later stage of the suit. But before referring to those decisions, a comparison between Order 14, rules 1 and 2 and this rule would be helpful in understanding its true import. Under Sub-rule (5) of rale 1 of Order 14 at the first date of hearing of the suit the Court, after reading the plaint and the written statement and the statements referred under Rule 2 of Order 10 is required to ascertain upon what material propositions of fact or of law the parties are at variance and thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Rule 2 lays down that notwithstanding that a case may be disposed of on a preliminary issue the Court shall pronounce judgment on all issues subject to the pro visions of Sub-rule (1) which provides that where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be deposed of on 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(sic) after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. It is therefore, evident that sub rule (2)(sic) enjoins upon the Court to frame all the issues where issue of fact or law arise from the pleadings of the parties and the Court can postpone the framing of all the issues only where the provisions of rule (2) are attracted and the suit can be desposed of on purely issue of law which does not require the leading of any evidence by the parties for its disposal. If no such issue of law on which the suit can be disposed of arises from the pleadings of the parties, the Court has no discretion in the matter and has to frame all the issues arising front the pleadings of the parties, whether of fact or of law. Then comes into play the provisions of Order 15 which also deal with the situation arising on the first date of the hearing. Rule I provides that where the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment. Where there are more that one Defendants Rule 2 provides that if any one of the Defendants is not at issue with the Plaintiff on any question of law or fact,the Court may at once pronounce judgment for or against such Defendant and the suit shall proceed only against the other Defendants. If neither the provisions of Rule 2 of order 14 nor of rules 2(sic) and 2 of order 15 are attracted and all the issues have been framed under Order 14 Rule 1 (5), still the Court can proceed and decide the suit on the first date of the hearing if the situation as envisaged in Rule 3 of Order 15 arises. There can be therefore, no manner of doubt that the provisions of Rule 3 can be in voked only on the date of the first hearing of the suit when the issues are framed and the Court is satisfied that the suit can be disposed of on some issues of fact or law on which the parties can at once adduce the evidence.

The view expressed above finds support from the two Divisi on Bench decisions of the Calcutta High Court in Yatindra Nath Chaud-hury v. Hari Charan Chaudhury AIR 1915(sic) Cal. 87 and Debendra Narain Row v. Jogendra Narain Deb A.I.R., 1933 Cal 559 and Single Bench decision of Allahabad High Court in Estrela Batteries Ltd. Vs. Modi Industries Ltd., Somewhat contrary view appears to have been taken in the Single Beach decision of the Madras High Court in S Ramkrishan Pilla v. Krishraswami Pilla AIR 1922 Madras 321 and a Division Bench Decision of Patna High Court in Lachmi Narain Singh v. Run Narain A.I.R 1921 Pat 467. No doubt, in Ramkrishna Pillai''s case (supra) the learned Judge observed that in his opinion there was no reason to confine the application of Order 15 Rule 3 to try certain issues to the first date of hearing, but on the facta of that case it was held that the first hearing had not taken place when the application under Order 15 Rule 3 had been made and the case was still at the issue stage. So the observations made were more or less in the nature of oniter dicta. In Lachmi Narain Singh''s case (supra), Das, J who spoke for the Bench observed:-

In my opinion both Order XIV, Rule 2 and Order XV Rule 3 give ample power to the Subordinate Judge to try issues of law first. It is quiet true that the power under Order XIV, Rule 2 can be exercised at the stage which may be con eniently dascribed as the issue stage but Order XV, Rule 3 pives(sic) power to the Subordinate Judges to proceed to determine the issues of law at a stage subsequent to the issue stage. Speaking entirely for myself, I think it is far better that the Subordinate Courts should not try any case piecemeal, but that is a matter which is for the Subordinate Judges to decide.

No doubt, it has been said in this case that the provision of Order 15, Rule 3 give power to the trial Court to determine all issues of law at a stage subsequent to the issue stage but from the facts it is evident that the parties had not started leading their evidence when the application under Order 15, Rule 3 was moved. White distinguishing the decision of that very Court and that of the Calcutta High Court, it was observed that in those cases evidence had been recorded and the trial had proceeded whereas in the case in hand, no evidence had been led as yet and therefore, the hearing of the suit had not commenced, it is, therefore evident that in both the said cases the Court actually proceeded on the ground that the hearing in the suit had not commenced and the suit had not pasted beyond the state of the first date of hearing. There(sic) is, thus, no serious conflict between the Madras and Patna High Courts on the one hand and the Calcutta and Allahabad High Courts on the other and the view is unanimous that once the first date of bearing has passed and the parties have started leading their evidence, the Court has no jurisdiction to invoke the provisions of Order 15, Rule 3 and proceed to decide tome of the issues only even though the decision on those issues may enable the Court to dispose of the suit finally.

However, a confilor(sic) does exist between the Calcutta and Allahabad High Courts on the one hand and Madras and Patna High Courts on the other in a limited sense in as much as according to one view the provisions of Order 15 Rule 3 can be invoked only on the date when the case is taken up by the court for framing of the issues while according to the other view action can be taken under the said rule even on the date subsequent to the date on which the issues are framed provided the parties have not started leading their evidence. After a careful perusal of the provisions of the said Rule 3, I am of the opinion that the view taken by the Calcutta and Allahabad High Courts is the correct view. The words, "where the summons has been issued for the settlement of issues only or for the final disposal of the suit" in Rule 3 clearly shows that its provisions can be invoked on the date when the case is taken up for framing the issues, though a stage for involving its provisions arises wh n the issues have already been framed under Order 14, rule 1 (5), This view is further strengthened by the provise to this rule which lays down that where summons has been issued for settlement of issues only action can be taken if no objection is raised by the parties or their counsel. Again the court cannot proceed to decide any issue which may be suficent for the decision of the suit unless the Court is satisfied that no further argument or evidence than the parties can adduce at once is required for the decision of such issue. This requirement also points out that the provisions of the said Rule 3 can be invoked only soon after the framing of the issues but before the suit is adjourned for the evidence of the parties.

In view of the above discussion, I find no merit in these petitions and the same are hereby dismissed but without any order as to costs. The parties, through their counsel, have been directed to appear in the trial Court on July 23, 1979.

R M.S. Petition dismissed.