Heard Sri G.S. Nigam,learned counsel for the petitioner and Sri Nripendra Mishra, Advocate holding brief of Sri Manish Kumar, learned counsel for the respondents.
By means of the present writ petition the petitioner has challenged the impugned order dated 26.07.2010 (Annexure-1) and 06.04.2010 (Annexure-4) passed by O.P. Nos. 1 and 2 respectively.
Facts in brief, submitted by Sri G.S. Nigam, learned counsel for the petitioner are that Smt. Ram Shree plaintiff/O.P. No. 3 who is daughter in-law of the petitioner filed a suit for cancellation of a sale deed registered as Regular Suit No. 58 of 2007 Ram Shree Vs. Smt. Thakura Devi in the court of Additional Civil Judge (Jr. Div.) Court No. 1, Sitapur, petitioner was impleaded as respondent in the said suit, and she filed a written statement inter alia taking a plea that the Civil Court has no jurisdiction to entertain the suit in question in view of the bar as provided under Section 331 of U.P Zamindari Abolition and Land Revenue Act.
Further the issues were framed in the suit by the trial court and issue No. 5 is to the effect that:-
"क्या वाद धारा 331 उत्तर प्रदेश ज़मींदारी विनाश एवं भूमि सुधर अधिनियम से बाधित है ?"
After hearing the counsel for the parties the trial court /O.P. No. 2 by means of the judgment and order dated 06.04.2010 (Annexure-5) held that the issue No. 5 is a mixed question of law and fact which requires evidence to be decided and the same can be done only after recording the evidence from both the sides, as such refusal to decide the same as preliminary issue.
Aggrieved by the said order, petitioner filed a revision, dismissed by the O.P. No. 2 vide judgment and order dated 26.07.2010 with the observation:--
"I have gone through the relevant provisions under Order 14 Rule 2(1) C.P.C. it is provided therein that even though a case may be disposed of on a preliminary issue, the court shall subject to the provisions of sub Rule 2(2) pronounce judgment on all issues. Rule 2(2) provides discretionary power of court to decided the issue with regard to jurisdiction first. The learned Civil Judge has considered the matter and found it expedient to d3ecide the issue with regard to jurisdiction alongwith other issue. The order does not violate any provisions of law."
Sri G.S. Nigam, counsel for the petitioner submits that the impugned order passed by O.P. Nos. 1 and 2 are contrary to law rather in contravention to the provisions as provided under Order 14 Rule 2(2) CPC, the issue NO. 5 framed in the suit is to be decided as a preliminary issue because in the present case the suit filed by the plaintiff/O.P. No. 3 for cancellation of a document(Sale deed) relates to agricultural property, so the same is not maintainable in the Civil court. In respect to the contention that the court below has misinterpreted the provisions as provided under Order 14 Rule 2 (2) CPC, learned counsel for the petitioner rely on the judgment in the case of K.G. Plasto Chem (I) Private Limited Vs. M/s Tulison Industrial (Machines) Pvt. Ltd. and others 2009 All. C.J. 1370 He further submits that as per the allegation made in para 8 of the plaint, it is clear that the plaintiff/O.P. No. 3 is claiming succession over the property in suit after death of Sunder who was her husband and described the sale deed in question as a void document and since she is not recorded as the tenure holder in respect to the property in question, so relief claimed by her can only be granted by the Revenue Court and not by the Civil Court, because the relief for declaration of her title in the property in suit cannot be granted by Civil Court and in support of his submission that the matter in respect to cancellation of sale deed is not maintainable in the civil court, he has placed reliance on the following judgments namely (a) Ram Awalamb and others Vs. Jata Shanker and others 1968 RD 470 (b) Ram Padarath and others Vs. 2nd Addl. D.J., Sultanpur and others 1988 (6) LCD 565 (c) Kamla Prasad & Ors. Vs. Sri Krishna Kant Pathak & Ors. 2007 (II) RJ 794.
In view of the abovesaid facts and law, it is submitted by Sri G.S. Nigam, learned counsel for the petitioner that the impugned order under challenge in the present writ petition is liable to be set aside.
I have heard the counsel for the parties who are present today and gone through the record.
So far as the factual matrix of the present case are concerned, it is not disputed that plaintiff/O.P. No. 3 Smt. Ram Shree was a widow of the son of the petitioner, who filed a suit for cancellation of the sale deed (Suit No. 58 of 2007) and in the said suit issue No. 5 was framed to the effect that whether in view of the provisions as provided under Section 331 of U.P. Act 1 of 1951, the suit is barred however by means of the order dated 06.04.2010, the trial court has held that the said issue relating to jurisdiction of the Court is mixed question of law and fact which requires evidence from both the sides in order to be adjudicated, as such the same cannot be decided as preliminary issue. Aggrieved by the same, the petitioner filed a revision, dismissed by O.P. No. 1 vide order dated 16.07.2010.
Accordingly, the sole question which is to be decided in the instant case, is whether the issue No. 5 ought to have been decided as preliminary issue by the Courts below or not.
Order XIV, Rule 2(2), C.P.C. provides that 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, it 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 of that issue.
Sub-rule (2) leaves discretion upon the Court. It is not mandatory on the Court to decide the question of the jurisdiction or other issues relating to the maintainability of the suit. Sub rule (I) of Rule 2 mandates a Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
The intention of the Legislature is that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues, be avoided as far as possible, if all the issues are decided that may avoid unnecessary multiplicity of the proceedings in relation to deciding the preliminary issue. It is open for the Court, however, in some circumstances if it is apparently clear that the suit is not maintainable or barred by jurisdiction, to dispose of such issue, may decide such issues as preliminary issue.
In Smt. Fatima Bibi v. Board of Revenue, Allahabad, 1981 All LJ 812, this Court held that if the trial Court had taken decision to consider the question of bar of suits under Section 49 of the Act at the time of the judgment and not as preliminary issue, the Court could not be said to have patently erred in not deciding the issue; preliminary issue, as it was within the discretion of the Court to try an issue of jurisdiction or bar of maintainability of the suit as a preliminary issue. The Court pointed out that sub-rule (1) Order XIV of C.P.C. the word `shall' has been used whereas in sub-rule (2) the word 'may' has been used which clearly indicates that it is discretion of the Court to decide any issue as preliminary issue.
In Dhirendranath Chandra v. Apurt Krishna Chandra, AIR 1979 Pat 34, the question was whether the suit was barred by the provisions of Section 66(1) of the Code of Civil Procedure and such issue be decided as a preliminary issue it was held that it was not obligatory on the Court to try the issue as a preliminary issue as sub-rule (2) of Rule 2 of Order XIV leaves discretion on the Court to try an issue as preliminary issue.
In Usha Sales Ltd. v. Malcolm Gomes, AIR 1984 Bom 60, the Court held that it is not obligatory on the Court to decide issue relating to the jurisdiction or legal bar to the suit as a preliminary issue In the case of Sidh Nath and others Vs. District Judge, Mirzapur and other AIR 2002 Allahabad 356, this court after placing reliance in the case of M/s. Ramdayal Umraomal vs M/s. Pannalal Jagannathji, AIR 1979 MP 153 (FB) a Full Bench of the Madhya Pradesh high Court -laid down as follows (Paragraph 5 of the said AIR).
"5 This provision makes it clear that the issue as to jurisdiction may be an issue of law or of fact or a mixed issue. The obligation to try the issue of jurisdiction as preliminary arises only when it is an issue of law. Issue of jurisdiction depending on question of fact and or mixed question of law and fact, must be decided on merits at one and the same time, along with other issues. If the Court finds, on a trial, on merits so far as this issue of jurisdiction goes, that the case is not cognizable by the Court because of want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper Court, and if, on the other hand, it finds that having regard to the nature of the suit, it is not cognizable by the class of Courts to which the Court belongs, the plaintiffs suit will have to be dismissed in its entirety Discretion to try preliminary Issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence."
In the case of Shoib Ullah and others Vs. Bhartesh Chandra Jain and another AIR 2003 Allahabad 31, this court has held as under :-
"The first case referred to is a Full Bench decision of this Court in Sunni Central Waqf Board v. Gopal Singh Vishrad (FB) reported in AIR 1991 All 89. After considering the provisions of Rule 2 the Full Bench of this Court held that (Para 11):
"Now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue."
The other case referred to is a Division Bench decision in the case of The Manager, Bettiah Estate v. Sri Bhagwatt Saran Singh. AIR 1993 All 2. It was observed that (Para 12):
"An issue of law can be decided as a preliminary only where it Is such that Its decision does not necessitate Investigation into facts and it relates either to the jurisdiction of the Court or to the suit being barred under any prevailing law, and that, in the opinion of the Court the decision of the issue will result in the decision of the whole or a part of the suit. The discretion in this regard must always be exercised on the basis of sound judicial principles. However, even if an issue of law can be decided as a preliminary issue as aforesaid the Court is not always bound to decide it as a preliminary issue and can in its discretion, postpone its decision also along with other Issues whether of law or fact."
In the case referred of M/s. Ram Babu Singhal v. M/s. Digamber Parshad Kirti Parshad. AIR 1988 All 299. It has been held in "paragraphs 6" as under:--
"However, when the Court comes to the conclusion that the question of jurisdiction of the Court depends upon the detailed evidence of the parties which are almost identical with the matter which relates to other issues in the suit and the Court comes to the conclusion that this could not be decided as a preliminary issue it cannot be said that the Court committed any error of jurisdiction or illegality. There is nothing in S. 21, which makes it mandatory for the Court to decide the question of jurisdiction as a preliminary issue."
So far as the case cited by the learned counsel for the petitioner M/s K.G. Plasto (Supra) is concerned was in the said case, the matter under consideration is to the effect that section 11 CPC embodies the doctrine of res-judicata and issue of res-judicata being a legal issue has to be decided as preliminary issue firstly under Order 14 Rule 2 (2) C.P.C. before final adjudication of the suit itself, as the question of res-judicata bars the trial of subsequent suit or issue in subsequent suit which has been decided earlier and also relates to the jurisdiction of court. Whereas learned counsel appearing for the respondents has submitted that in given facts and circumstances of the case the impugned order passed by the court below cannot be held to be faulty so as to call for any interference by this Court. In view of the abovesaid factual background, the court in para 12, 18 & 22 has held as under:--
"Para 12 - From aforesaid legal position, it is clear that the Court which has decided former suit or issue, must have had jurisdiction to decide former as well as subsequent suit both, but this rigour of the provisions of Section 11 of the C.P.C. is relaxed by Explanation (VIII) attached with the said section whereby the applicability of principle of res judicata is extended to the cases where an issue was heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, despite that such Court of limited jurisdiction was not competent to try such subsequent suit or suit in which such issue has been subsequently raised.
Para 18 - From a plain reading of Order XIV, Rule 2, C.P.C., it is clear that Sub-rule (1) of said rule postulates a general principle that inspite of fact that a case may be disposed of on a preliminary issue despite thereof the Court is obliged to pronounce judgment on all issues but the aforesaid principle is subject to exception carved out by Sub-rule (2) of said rule, which provides that 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 issue of law alone, it may try that issue of law first if that issue relates to- (a) the jurisdiction or 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. Therefore, in my opinion, in order to satisfy the essentials of Order XIV, Rule 2 (2) the issue of law must be related either to the jurisdiction of the Court or to a bar to the suit created by any law for time being in force and further the Court must be of opinion that the case or any part thereof may be disposed on an issue of law only.
Para 22 - Since another essential ingredient for operation of provisions of Order XIV, Rule 2 (2) is that the issue of law must relate either to the jurisdiction of Court, or to a bar to the suit created by any law' for time being in force, therefore, now next question arises for consideration as to whether issue of res judicata relates to the jurisdiction of Court or to a bar to the suit created by any law for the time being in force? In this connection it is necessary to point out that under the provisions of Order XIV, Rule 2 (2), C.P.C. where the issue of law relates to the jurisdiction of the Court or to a bar to the suit created by law for instituting the claim, the same shall be tried as preliminary issue. Thus the issue of res judicata must have some material bearing with the jurisdiction of the court to try subsequent suit or issue in a subsequent suit which has been directly and substantially in issue in former suit and has been heard and finally decided by the Court having competence to decide such suit or issue. Therefore, in this manner, the issue of res judicata, in my considered opinion, must relate to the jurisdiction of the Court and also create a bar by law for time being in force to try a subsequent suit and thus satisfies the essential ingredients of Order XIV, Rule 2 (2), C.P.C."
In view of the abovesaid facts and legal position which has been stated in the preceding paragraphs, and from a perusal of sub- Rule 2 Order 14 it is clear that an issue of law may be tried as a preliminary issue provided it relates to the jurisdiction of the Court or to a bar to the suit created by law for the time being in force. However, the said provision gives discretion to the Court to try an issue as preliminary issue or not. The Court is not duty bound to decide any issue as preliminary issue. This is evident from the words "it may try" occurring in the said provision.
Thus, even if the issue relates to the jurisdiction of the Court or to a bar to the suit created by law for the time being in force, still the Court has discretion under Order 14 Rule 2(2) to try the same as preliminary issue or not and the petitioner cannot derive any benefit from the judgments namely K.G. Plasto Chem (I) Private Limited Vs. M/s Tulison Industrial (Machines) Pvt. Ltd. and others 2009 All. C.J. 1370, Ram Awalamb and others Vs. Jata Shanker and others 1968 RD 470 and Ram Padarath and others Vs. 2nd Addl. D.J., Sultanpur and others 1988 (6) LCD 565 and Kamla Prasad & Ors. Vs. Sri Krishna Kant Pathak & Ors. 2007 (II) RJ 794.
For the foregoing reasons, I do not find any infirmity or illegality in the impugned orders which are under challenge in the present case.
Accordingly, the present writ petition lacks merit and is dismissed.
No order as to costs.
Order Date :- 25.11.2010 Ravi/