Reserved
Court No. - 9
Case :- CIVIL REVISION No. - 66 of 2018
Revisionist :- Pushpa Tyagi And Another
Opposite Party :- Shiv Kumar Tyagi And 7 Others
Counsel for Revisionist :- Raghwendra Prasad Mishra,A.N. Tripathi
Hon'ble Anjani Kumar Mishra,J.
Heard Shri A.N. Tripathi, learned Senior Advocate for the revisionists.
This is a defendants' revision directed against the order dated 30.01.2018 passed by the Civil Judge (Senior Division) refusing to decide issue nos. 3 and 9 as, preliminary issues. This prayer had been made by the revisionist vide application 47 Ga (2), under Section 151 CPC.
The application has been rejected on the ground that the plaintiff's evidence is in process of being adduced.
The impugned order has been passed in a suit filed by the plaintiff-opposite party seeking a declaration that he is the exclusive owner of the plot in dispute on the basis of a Will dated 13.10.2006 executed by one Mahaveer Prasad Tyagi, who died on 20.02.2007 and that on the basis of the same Will, the plaintiff is entitled to mutation in the Office of the U.P. Awas Evam Vikas Parishad, defendant no. 8.
The contention of counsel for the revisionist is that issue no. 3 framed is whether the suit is barred under Order 7 Rule 11 CPC. Issue no. 9 is whether the suit is barred by Section 88 (2) of the U.P. Awas Evam Vikas Parishad Adhiniyam 1965. Both the issues are legal issues and they should have been decided as preliminary issues. The Court below has wrongly rejected the application filed by the revisionist.
Reliance has been placed upon the decision of the Apex Court in R.K. Roja Vs. U.S. Rayudu and another passed in Civil Appeal No. 5540 of 2016 to submit that the question as to whether the plaint is liable to be rejected under Order 7 Rule 11 CPC, can be decided at any stage and that the provision itself casts a duty upon the Court to perform its obligation of rejecting the plaint, when the same is hit by any of the four clauses of Rule 11 of Order 7 CPC.
The second submission of counsel for the revisionist is that in view of the decision of the Apex Court in U.P. Avas Evam Vikas Parishad and others Vs. Om Prakash Sharma passed in Civil Appeal Nos. 3908-3909 of 2013, especially paragraph 31 thereof, the suit is barred by Section 88 (2) of the said Act and that maintainability of the suit on the ground of non-issuance of a statutory notice to the U.P. Awas Evam Parishad, prior to institution of a suit is a legal ground, which can be raised at any point of time, even at the second appellate stage.
In so far as the reliance upon the decision of the Apex Court in R.K. Roja (supra) is concerned, the same, in the facts and circumstances of the instant case, is not strictly attracted. In the judgment cited, an application under Order 7 Rule 11 CPC filed by the revisionist had not been disposed of and in its judgment, passed in this context, the Apex Court in paragraph 20 of the said judgment has observed as follows:-
"20. Rule 1 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits."
It, therefore, emerges that a party has the remedy of filing an application under Order 7 Rule 11 CPC and in case such an application is filed, the same has to be decided.
On a pointed query by the Court, counsel for the revisionist admits that no application under Order 7 Rule 11 CPC has been filed. The application that has been rejected by the order impugned was an application under Section 151 CPC praying that issues no. 3 and 9 framed in the suit be decided as preliminary issues.
In view of the observation of the Apex Court, extracted above, it emerges that the remedy of an application under Order 7 Rule 11 CPC has not been availed by the defendant.
Besides, the Apex Court in the judgment cited has also observed that "without disposing of an application under Order 7 Rule 11 CPC, the Court cannot proceed with the trial."
As observed above, admittedly, the revisionist has not filed any application under Order 7 Rule 11 CPC and for this reason the judgment cited is not relevant for the purposes of the instant revision.
In so far the second submission and reliance upon the decision in U.P. Avas Evam Vikas Parishad Vs. Om Prakash Sharma is concerned, the same in my considered opinion is misplaced.
Issue no. 9 has not yet been decided by the trial Court and any observation at this stage by this Court is likely to prejudice the case of the parties. The trial Court has merely refused to decide the issue as a preliminary issue.
Therefore, in the facts and circumstances of the instant case, this Court does not consider it appropriate to enter into the issue as to whether or not the suit is barred by Section 88 (2) of the U.P. Awas Evam Vikas Parishad Adhiniyam.
In my considered opinion, the only question which requires consideration in this revision is whether or not the trial Court was justified in refusing to decide issues 3 and 9 framed in the suit, as preliminary issues.
For this purpose reference to Order 14 Rule 2 CPC is needed. The said provision is extracted below:-
"Court to pronounce judgment on all issues
(1) Notwithstanding that a case may be disposed of on 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 issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
Sub-rule 2 of Order 14, in view of the word used therein casts a discretion upon the Court whether or not to decide an issue as a preliminary issue. It therefore follows that a Court is not bound to decide any issue as a preliminary issue. This is precisely what has been held in Siddhnath Vs. District Judge, Mirzapur, AIR 2002 Allahabad 356.
The Court below has refused to exercise its discretion in favour of the defendant on the reasoning that the trial of the case has commenced and the plaintiff is in process of adducing his evidence.
Under the circumstances and in view of the reasoning given, I do not find any material irregularity in the exercise of jurisdiction by the trial Court.
Even otherwise, it is settled law that the superior Courts should not lightly interfere in discretionary orders of the subordinate courts. Therefore, also this Court does not find any reason to interfere with the impugned order.
Besides, the issues shall, in any case, be decided while deciding the suit and, therefore, no serious prejudice is caused to the revisionist by the impugned order.
The revision is accordingly dismissed.
Order Date :- 29.05.2018 Mayank
ANJANI KUMAR Digitally signed by ANJANI KUMAR MISHRA DN: C=IN, O=Personal, PostalCode=211001, S=Uttar Pradesh, Phone=f6e3ce979d8983acfc0b3ea0 49885bf64ad5bbb33050e3dfe3e210 927d94f413, SERIALNUMBER=004ee64f25f9f36f MISHRA 85dbdc71f5b0ec1e2f0938431e25db badc93823915b36c6f, CN=ANJANI KUMAR MISHRA Reason: I am the author of this document Location:
Date: 2018-05-29 10:48:55