Vishnu Saw Mills vs Vitthal Rao

Samvatsar, J.—This revision-application is filed by the defendants and arises out of a suit for damages for breach of contract.

The plaintiff''s case in the plaint is that the defendants under two separate contracts agreed to sell to Messrs Ramchandrarao Badrilal, Timber Merchants, Indore, three wagons of timber on certain terms but they supplied only one and a half wagon and failed to deliver the remaining goods; that the defendants having thus committed breach of contracts had rendered themselves liable to pay damages to Messrs Ramchandrarao Badrilal.

The plaintiff has further alleged that the Firm Ramchandrarao Badrilal has been dissolved and the recoveries including their claim for damages against the defendants have been assigned to the plaintiff under a deed dated 30 July, 1951. The plaintiff has therefore filed the present suit for recovering damages in respect of the breach of contract committed by the defendants.

In Para-7 of the plaint the plaintiff has alleged that the goods were to be delivered at Indore and the price was also payable at Indore and that the Indore Court had therefore jurisdiction to entertain the suit.

The defendants contested the claim. They denied having committed breach of contracts and further averred that the plaintiff, as assignee of the claim for damages was not entitled to maintain the action. They also denied that the contracts were to be performed at Indore and contended that they were made and were to be performed at Yeotmal; that the Indore Court had therefore no jurisdiction to entertain the suit.

The trial. Court framed issues and recorded the admissions and denials of the parties with respect to various documents produced by them.

On 17-10-1955 the defendants applied to the Court to try Issue No. 6 which relates to the jurisdiction of the Indore Court to try the suit, and Issue No. 7 which is, whether the plaintiff as assignee of the claim for damages due to Ramchandrarao Badrilal, can maintain the action, as preliminary issues. The prayer of the defendants was opposed by the plaintiff and the learned Civil Judge rejected it by his order dated 3-11-1955. It is against this order that the defendants have preferred this revision-application.

The trial Court held that Issue No. 6 was not an Issue of law purely but it raised a mixed question of law and facts and that it cannot therefore be decided without recording evidence of the parties. The learned Judge therefore ordered that evidence on all issues should be recorded and that all the issues should be decided together.

As regards Issue No. 7 the learned Judge has said nothing in his order. Mr. Phadnis, learned Counsel for the petitioner submitted that the trial Court had failed to consider his prayer for deciding Issue No. 7 as a preliminary Issue of law. It was contended on behalf of the other side that before the trial Court the petitioner had not pressed his contention regarding Issue No. 7 and the learned Judge therefore did not feel it proper to consider it.

It is not possible to determine at this stage whether the prayer for dealing with Issue No. 7 as preliminary issue of law was in fact pressed before the trial Court and that it was the Court that failed to consider it. I am of opinion that it is open to the defendants to approach the trial Court again with a request to take up Issue No, 7 as a preliminary issue of law and to dispose it of before dealing with the rest of the case. Mr. Phadnis, learned Counsel for the petitioner has also no objection to adopt this course.

As regards Issue No. 6 it is conceded that it does not raise a pure question of law but raises mixed questions of law and facts. It is also agreed that the question raised in Issue No. 6 cannot be decided on the admitted facts but requires recording of further evidence. The learned Judge was therefore right in holding that Issue No. 6 cannot be decided on the material before him and that both the parties will have to produce further evidence.

The question now to be considered is not whether the trial Court has acted rightly or wrongly in refusing to deal with Issue No. 6 first but the question is, whether in passing the order under revision it has acted contrary to or in breach of some mandatory provision of law.

The material provisions which arise for consideration on this aspect are to be found in Order 14, Rule 2 and Order 15, rule 3, Civil Procedure Code. Order 14 Rule 2 applies where the Court is of opinion that the whole case or any part of it can be disposed of on the issue of law only. In such case it empowers the Court to frame issues of law only and decide them as preliminary issues of law and for that purpose to postpone the settlement of issues of facts until after the issues of law have been determined.

The question raised by Issue No. 6 is a question relating to the jurisdiction of the Court to try the suit; but such a question is not always a pure question of law. It may in certain cases be a pure question of law or a mixed question of law and facts. It has been observed by Chagla C.J. in Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and Others, , that:--

It is open to a Court to take the view that even if the plaintiff Were to establish all the facts alleged by him, the Court would have no jurisdiction. In that view of the matter, a preliminary issue on a demurrer will arise, and that would undoubtedly been issue of law. But there may be a case where an issue as to jurisdiction would require leading of some evidence, in which case an issue of jurisdiction would raise a mixed question of law and fact. Such an issue may be tried as a preliminary issue, or it may be tried as an issue along with other issues. This would depend upon whether the evidence with regard to jurisdiction could be separated from the evidence on other issues. Therefore, it would not be correct to say that in all cases an issue as to jurisdiction is necessarily an issue of law.

Bhagwati J. also endorsed the same view and held that an issue as to jurisdiction can be an issue of law or an issue of fact or a mixed issue of law and? fact and the duty of the Court to try issue of jurisdiction as a preliminary issue does not arise in all cases.

The trial Court has in the present case held that Issue No. 6, though it raises a question of jurisdiction, cannot be decided as a pure issue of law and that in order to decide it properly it wilt be necessary for both the parties to adduce further evidence. This finding of the trial Court has not only not been assailed before me, but Mr. Phadnis, learned Counsel for the petitioner, conceded that the view taken by the lower Court in this respect was correct.

As Issue No. 6 does not raise purely a question of law and cannot be decided without further evidence, the provisions of Order 14, Rule 2, CPC cannot be invoked.

Mr. Phadnis then relied upon the provisions of Order 15, Rule 3, Civil Procedure Code. This Rule is as follows:--

R. 3 (1). Where the parties are at issue on some question of law or of 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 proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly,.....

This rule applies where in a suit issues of law and facts arise and are framed by the Court. It empowers the Court, if it is satisfied that some of the issues can be decided forthwith, to determine them and if the finding thereon is sufficient for the decision of the suit, it further empowers the Court to pronounce judgment accordingly. But as held by the High Court of Bombay in Haridas Mafatlal Gagalbhai Vs. Vijayalakshmi Navinchandra Mafatlal Gagalbhai and Others, , this rule only applies where the practice of certain Courts is to fix a day for the settlement of issues and then if issues are settled, the Court may proceed to hear certain of the issues forthwith.

The finding of the learned Civil Judge does not show that he was satisfied that Issue No. 6 could be disposed of at once or without recording further evidence. The finding of the learned Judge in this behalf has not been challenged by Mr. Phadnis, nor does it appear to be erroneous in any matter.

On this view of the matter neither Order 14, Rule 2 nor Order 15, Rule 3 can be applied to this case. It cannot therefore be said that the learned Civil Judge has committed a breach of any of the mandatory provisions of the Code and is guilty of exercising his jurisdiction illegally or with material irregularity.

The Court trying a suit has no doubt ample powers to fix any one of the issues involving questions of law and facts for hearing and to decide, it as preliminary issue. The power of the Court in this behalf is not derived under any specific provision of the Code but is inherent in it as every Court has jurisdiction to determine the course of trial of a suit pending before it and to decide how it should proceed with it. I am supported in this view by the decision of the Bombay High Court in Sowkabai vs. Tukojirao AIR 1932 Bombay 128. It is held in that case that:--

Where the Court has framed all the issues which properly arise, the Judge may come to the conclusion that one or more of those issues should be tried first and independently, because the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues unnecessary.

The view expressed by the High Court of Bombay in Sowkabai Pandharinath Rajapurkar Vs. Sir Tukojirao Holkar, was approved in Shiv Bhagwan vs. Onkarmal and Haridas vs. Vijayalakshmi.

On these authorities as also on the plain langnage of Order 14, Rule 2 and Order 15, Rule 3, Civil Pro. Code, it is cleat that the contention, that the learned Civil Judge, by refusing to grant the prayer of the petitioner for setting out Issue No. 6 as preliminary issue declined to exercise jurisdiction vested in him, cannot be upheld. There is also no breach of any of the mandatory provisions of law and the Court cannot be said to have exercised its jurisdiction illegally or with material Irregularity.

There are therefore no grounds to entertain this revision application. It is hereby dismissed with costs.