I.A.No. 16670/2011 (Under Sections 45 and 73 of Indian Evidence Act) This is an application filed by the petitioners for leading evidence of their private handwriting expert in terms of the order dated 6.8.2008. Ordinarily, there would have been no need for this application because the permission has already been granted vide order dated 6.8.2008, however actually the permission which is sought by means of the present application is that original Will dated 7.3.1986 (evening) which is lying in a sealed Test Cas.20/1997 Page 1 cover be allowed to be photographed by the handwriting expert so that a report with respect to the signatures of the testator can be prepared. Accordingly, this application is allowed and the handwriting expert of the petitioners is allowed to take photographs of the documents filed in this Court by either of the parties, of course after giving due notice of the date to the opposite side when the handwriting expert will appear for taking photographs of the documents and the signatures thereon. If any of the documents are lying in a sealed cover the same will be opened before the concerned Assistant Registrar and who will reseal the envelope after the needful is done.
I.A. stands disposed of.
I.A.No.4665/2012 (U/s 151 CPC)
1. This is an application filed by the respondent no.2/objector under Section 151 CPC seeking directions that issue no.2 framed on 30.8.2011 be decided as a preliminary issue.
The order dated 30.8.2011 reads as under:-
" ORDER 30.8.2011
I.A Nos. 12170/2011 (filed by learned counsel for the petitioners1(a) to (c) seeking discharge in this case) Test Cas.20/1997 Page 2 The application is sought to be withdrawn since the petitioner has now contacted the counsel and given instructions to her. The application is accordingly dismissed as withdrawn. TEST.CAS. 20/1997 The following issues are framed to decide this petition:-
1. Whether Dr Kohli validly executed the Will in the evening of 07th March, 1986?OPP
2. Whether the legal representatives of late Shri K.V.Kohli have no right to prosecute this petition? OPO
3. Relief.
No other issue arises or is claimed.
Affidavit by way of evidence be filed within six weeks. The parties to appear before the Joint Registrar for fixing a date for cross-examination of witnesses of the petitioner on 02nd November, 2011."
2. A reading of this order shows that when issues were framed on 30.8.2011, no request was made to treat issue no.2 as a preliminary issue.
3. Before I come to the facts of this case, the legal position will have to be examined with regard to issues; a preliminary issue, a preliminary issue which is an issue affecting jurisdiction of the Court or is a legal issue containing bar to the suit created by law; and finally as to whether it is compulsorily mandated that the Court must necessarily first decide the preliminary issue merely Test Cas.20/1997 Page 3 because it falls in sub rule (2) of Order 14(2) CPC.
4. Order 14 Rule 2 CPC reads as under:-
"2.Court to pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issues, 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 issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
5. Order 14 Rule 2 CPC was amended by Act 104 of 1976 by the legislature w.e.f. 1.2.1977. The provision was amended to ensure that there is no piecemeal trial on different issues by taking them as preliminary issues. Experience showed that there was a considerable delay in disposal of many suits merely because of an issue being tried as a preliminary issue, thereafter challenge being laid to various higher Courts and again the suit coming back for a fresh decision to the original Court after many many years. The legislative intention therefore, and which is clear from every part of Order 14 Rule 2 (2) CPC, is that except in very limited cases under Order 14(2)(2), all issues shall Test Cas.20/1997 Page 4 be tried together and the Court shall pronounce judgment on all issues including a preliminary issue. In fact, even if the issue falls under Order 14(2)(2), yet, this provision uses the expression „may‟ (not once but twice) and not „shall‟ thus indicating that the Court in spite of the issue falling under Order 14(2)(2), yet, in the facts of a case may refuse to try that issue as a preliminary issue. Finally it be noted that when Order 14(2)(2) CPC allows the Court to treat an issue of „bar to the suit created by any law‟ as a preliminary issue it has to be understood that Order 14(2)(2)(b) has substance similar to Order 14(2)(2)(a) i.e the bar to the suit created by law has to be threshold bar similar to lack of jurisdiction of the Court. Thus the legal bar contemplated under Order 14(2)(2)(b) is a threshold bar. Putting it differently to pray for dismissal of a suit because of certain legal provision has two aspects. One aspect is that the Court has jurisdiction and then because it has jurisdiction it decides the case on merits by applying some legal provisions to decide the suit. This aspect cannot fall under Order 14(2)(2)(b). What falls under Order 14(2)(2)(b) are those bars by which the Court is prevented/barred to decide the merits of the matter. Further, it is no longer res integra that an issue on which the evidence is required cannot be said to be a legal issue and therefore cannot be a preliminary issue vide Test Cas.20/1997 Page 5 Ramesh B.Desai & Others Vs. Bipin Vadilal Mehta & Others (2006) 5 SCC
638.
6. Before proceeding further, I must also note a brief history of this case which may have some bearing on the decision of the present application. This petition was dismissed in default on 13.5.1992. Actually, the original petitioner had expired much before 13.5.1992. The petition had thus actually abated, however, it was dismissed in default. The legal heirs of the original petitioner Mr. K.V.Kohli thereafter filed application for their substitution alongwith restoration application. Vide order dated 4.12.2000, the application for restoration was allowed subject to payment of ` 25,000/- as costs inasmuch as, the respondent no.2/objector did not oppose the restoration application. Thereafter, the objector filed an application under Order 7 Rule 11 CPC being I. A. No. 10816/2007 which was dismissed by a learned Single Judge (Sanjay Kishan Kaul, J.) on 21.9.2007 with costs of ` 7500/-. The Court noticed the lack of good faith on the part of the respondent no.2/objector in moving repeated applications. This order dated 21.9.2007 was carried in appeal by the respondent no.2 and which appeal being FAO(OS) 462/2007 was disposed of vide order dated 20.11.2007. The Division Bench noticed that a preliminary Test Cas.20/1997 Page 6 issue was already framed in this case vide order dated 2.8.2001 with respect to the validity of power of attorney executed by the legal heirs of Sh. K.V.Kohli in favour of their maternal uncle Sh. Vinod Nair, and thus it was observed by the Division Bench that the aspect of disentitlement of the legal heirs of the erstwhile petitioner Mr. K.V.Kohli to continue the petition (i.e. maintainability of the petition) will also be examined as a preliminary issue as there was already a preliminary issue of the validity of the power of attorney. Of course the validity of framing of that preliminary issue on 2.8.2001 is not before me however, I must note that if any of the counsel would have pointed out the different aspects and sub-rules of the provision of Order 14 Rule 2 CPC to the Court at the relevant stages, issues with regard to the validity of the power of attorney or maintainability of petition by LRs of Mr. K.V.Kohli would not have been directed to be decided as preliminary issues. I need not say anything further on this aspect in view of what I am holding hereinafter. However, I note that the Division Bench by its order of 20.11.2007 observed that the issue with respect to the competence of legal heirs of Mr. K.V.Kohli to prosecute the petition will be treated and decided as a preliminary issue alongwith the decision of the preliminary issue framed on 2.8.2001 with respect to the validity Test Cas.20/1997 Page 7 of the power of attorney in favour of Sh. Vinod Nair, and therefore, the issue with respect to the incompetence of the legal heirs of Sh. K.V.Kohli to pursue the petition was to be treated as incidental to the preliminary issue framed on 2.8.2001.
7. The suit thereafter came up before different learned Single Judges of this Court on different occasions and the petitioners also applied for amendment of the probate petition which was allowed vide order dated 4.9.2009. Though there were some disputes with respect to the delay in filing of the amended petition, ultimately, the amended petition was taken on record and Division Bench on 31.5.2010 dismissed the challenge to the order dated 4.9.2009 of the learned Single Judge allowing amendment.
8. A Learned Single Judge of this Court (V.K.Jain, J) on 16.11.2010, without reference to the provision of Order 14 Rule 2 CPC noticed the difficulty in treating an issue as preliminary issue when trial/evidence was required, however, in view of the orders of the Division Bench directed that the evidence be led with respect to preliminary issue framed on 2.8.2001.
9. After many dates before the Joint Registrar, the respondent no.2 obviously seems to have second thought on getting the preliminary issue qua Test Cas.20/1997 Page 8 the validity of the power of attorney in favour of Mr. Vinod Nair decided/treated as a preliminary issue, and therefore gave up this objection in its entirety, and which is recorded by the Registrar in his order dated 24.1.2011.
10. The case was thereafter listed for framing of issues, and issues were framed on 30.8.2011 as stated above. At the cost of repetition it may be observed that on 30.8.2011, there was no request made for treating the issue of the legal heirs of Mr. K.V.Kohli not being entitled to pursue the petition on account of certain provisions of Indian Succession Act, 1925 as a preliminary issue. The matter was fixed vide order dated 30.8.2011 before the Joint Registrar for fixing a date for cross examination of the petitioner. It is thereafter much later on 6.2.2011 that the present application has been moved to treat the issue no.2 as a preliminary issue.
11. Learned counsel for the respondent no.2 very vociferously argued that the order of the Division Bench of this Court dated 20.11.2007 mandates that this Court should try the issue with regard to the competence of legal heirs of Mr. K.V.Kohli to pursue the probate petition as a preliminary issue, and wanted to argue by reference to different provisions of Indian Succession Act and also certain judgments that the legal heirs of Sh. K.V.Kohli do not have a right to Test Cas.20/1997 Page 9 pursue the present petition as a probate case as a probate can only be granted in favour of an executor named in the Will. On behalf of the L.Rs of Mr. K.V.Kohli it was countered that at best on the death of Mr. K.V.Kohli/executor instead of probate being granted, what will be granted will be a letter of administration with the Will annexed, and this has more to do with form/heading and not with substance of the case which remains one hundred percent the same.
12. In fact, I have not permitted the counsel for respondent no.2 to show me the provisions of the Indian Succession Act, 1925 which he wanted to rely upon and the judgments, because, in my opinion I would be required to deal with such arguments only if I am required to treat the issue no.2 as a preliminary issue or I exercise my discretion to treat the issue no.2 as a preliminary issue. If I do not have to decide the issue no.2 as preliminary issue or I exercise my discretion against treating this issue no.2 as a preliminary issue, then, arguments on merits of this issue will be considered at the stage of final arguments after evidence of both the parties is completed in this case. In my opinion, the order of the Division Bench dated 20.11.2007 would not bind this Court to treat the issue no.2 as a preliminary issue for the reasons given hereinafter.
Test Cas.20/1997 Page 10
13. Firstly, the respondent no.2, and in whose presence the issues were framed on 30.8.2011, could have insisted in view of the order of the Division Bench dated 20.11.2007 to treat issue no.2 as a preliminary issue, but obviously she did not seek to do the same. Thus, when the issues were framed on 30.8.2011, it was a conscious act not to seek decision on the issue no.2 as a preliminary issue inasmuch as not only there is no such prayer which is recorded in the order dated 30.8.2011, but also, it is even not the case of the respondent no.2 that though such a prayer was made but not recorded on 30.8.2011 when the issues were framed. Secondly, for not taking issue No.2 as a preliminary issue, there may be some bearing on this aspect of the order dated 24.1.2011 when the respondent no.2 gave up his rights to treat the issue of validity of the power of attorney in favour of Mr. Vinod Nair as a preliminary issue and thus this also could be one reason why respondent no.2 did not press for getting the issue treated as a preliminary issue. (Though, of course in the order dated 24.1.2011, the presence is wrongly recorded of Sh. Mahender Rana, Advocate for the respondent no.1 it is not disputed before me that actually Mr. Mahender Rana has always appeared and in fact appeared on 24.1.2011 only for respondent no.2.) Thirdly it is possible that the respondent no.2 could have Test Cas.20/1997 Page 11 been advised of the correct legal position qua the subject of preliminary issues under Order 14(2) and thus did not press for treating the issue No.2 as a preliminary issue because the same would have resulted in evidence being led in tranches.
14. Keeping all the aforesaid facts in mind, including that even the Division Bench when it passed the order dated 20.11.2007 may not have passed the order treating the issue of competence of legal heirs of Sh. K.V.Kohli to pursue the probate petition as a preliminary issue, if Order 14 Rule 2 CPC was brought to its notice. I hold that issue no.2 need not be treated as a preliminary issue. This issue does not fall within the expression and intendment of „bar of suit created by law‟ as stated in Order 14(2)(2)(b) though it has so been sought to be argued on behalf of respondent No.2. Assuming issue No.2 can be said to be a preliminary issue, I refuse to exercise discretion to treat this issue as a preliminary issue and which is vested in me as per the intention of the legislature in amending Order 14(2) by Act of 104 of 1976. A lot of water has flown under the bridge since the order of the Division Bench dated 20.11.2007 inasmuch as the issue of validity of power of attorney has not to be treated as a preliminary issue as per the statement of the counsel for the respondent no.2 Test Cas.20/1997 Page 12 and also that there was no request on 30.8.2011 to treat the issue no.2 as a preliminary issue I have therefore at this stage to look into the matter only from the point of view of the present application falling within the applicable ingredients of Order 14 Rule 2 CPC. Though the application is titled under Section 151 CPC, really, the same is under Order 14(2) CPC.
15. Before I conclude, I must state that I put it to counsel for the respondent no.2, and which suggestion was agreeable to the counsel for the petitioners, that let the evidence be recorded by a Local Commissioner so that the same is completed within a few months, and I would give the power to Local Commissioner to impose heavy costs on the parties seeking unnecessary adjournments, and thereafter the case would be disposed of by this Court to the extent possible within the next six odd months, however, the counsel for the respondent no.2, in spite of the assistance being sought on this matter for expeditious disposal of the petition, refused to agree and insisted that I dispose of the present application and direct that issue no.2 be treated as preliminary issue.
16. In view of the aforesaid discussion and more particularly, as regards the mandate of Order 14 Rule 2 CPC, as also the fact that even a preliminary issue Test Cas.20/1997 Page 13 falling under Order 14 Rule 2 (2) CPC may not be treated as preliminary issue as per discretion of the Court, and considering the facts of the case, I am of the firm belief that all the issues should be heard and disposed of together and there should not be unnecessarily a piecemeal trial. I note that already this case has the trait of delays being caused on account of various applications being filed by one or the other parties and thereafter the orders being challenged before the Division Bench, and during which period obviously the disposal of the main petition had to remain in limbo-a position which is an anathema to the legislative intentions.
17. The application is accordingly dismissed, and in view of the aforesaid conduct of the respondent no.2, with actual costs being the lawyers fees for today‟s hearing incurred by the petitioners, and which details of costs should be filed by the petitioners on an affidavit within a period of one week from today, of the costs having been paid to their lawyers, and the costs thereafter shall be paid within a period of two weeks thereafter. I am imposing actual costs in terms of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011) 8 SCC 249 and by invoking my discretion to exempt the applicability of the Rules of this Court under Rule 14 of the said Original Side Rules, 1967.
Test Cas.20/1997 Page 14
18. List before the Registrar for fixing the date for evidence on 13th August, 2012.
JULY 05, 2012 VALMIKI J. MEHTA, J. ib Test Cas.20/1997 Page 15