Surendra Prasad Rai vs Addl. Commissioner ...
2013 Latest Caselaw 1585 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6
 
Case :- WRIT - C No. - 24778 of 2013
 
Petitioner :- Surendra Prasad Rai
 
Respondent :- Addl. Commissioner Administration Varanasi
 
Divi. And 4 Ors
 
Petitioner Counsel :- Shamimul Hasnain,Dhirendra Kr.Srivastava
 
Respondent Counsel :- C.S.C.,Mahesh Narain
 
 Mishra,P.K.Rai
 

 
Hon'ble Ran Vijai Singh,J.

Heard Sri Shamimul Hasnain, learned counsel for the petitioner, Sri R.N.Singh, learned Senior Counsel assisted by Sri P.K.Rai, learned counsel appearing for the respondent no. 3, learned Standing Counsel and learned counsel for the Gaon Sabha.

Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 4.4.2012 passed by Sub-Divisional Magistrate Chakia, District Chandauli (the respondent no. 2) and judgment and order dated 30.1.2013 passed by Additional Commissioner (Administration) Varanasi Division Varanasi (the respondent no.1).

Vide order dated 4.4.2012, the petitioner's application to decide the Issue Nos. 6 and 7 as a preliminary has been rejected on the ground that under the facts and circumstances of the case it be decided along with remaining issues. Whereas vide order dated 30.1.2013, the petitioner's Revision No. 14 of 2012 filed against the order dated 4.4.2012 has been dismissed. Out of these two issues one issue was relating to the under valuation of the suit and payment insufficient court fee and another was with regard

to bar of jurisdiction of civil court under Section 49 of U.P. Consolidation of Holdings Act, 1953.

Sri Hasnain has very vehemently contended that when the question of jurisdiction is raised, it should be decided as a preliminary issue for the reason that if it is held that the court has no jurisdiction to proceed with the matter, the proceeding will come to an end and the valuable time of the court as well as litigant will be saved. In support of his submissions, he has placed reliance upon the Division Bench judgment of this Court in Mrs. Shahnaz Husain Vs. Mohd. Yunus 1993 Allahabad Civil Journal 216.

Refuting the submissions of learned counsel for the petitioner, Sri R.N.Singh,learned counsel appearing for the respondent no. 3 submitted that Order 14 of Code of Civil Procedure has been amended in the year 1976 and in view of Sub-rule 2 of Order 14, all the issues have to be decided together. He has also contended that there can be no straight jacket formula to decide the question of jurisdiction at the first instance and it always depend upon the discretion of the court either to decide the question of jurisdiction as a preliminary issue or to decide the same along with other issues. In support of his submissions, he has placed reliance upon another Division Bench decision of this Court in Manager Bettiah Estate Vs. Bhagwati Saran Singh AIR 1993 Allahabad 2. Particular attention has been drawn towards para 12 of the aforesaid judgment. Reliance has also been placed upon the judgment of this Court in Mithlesh Kumari and others Vs. Gaon Sabha, Kishanpurand others AIR 1999 Allahabad 304. Learned Senior Counsel has also submitted that in this phenomenon once the discretion has been exercised by the court, there can be hardly any ground

to interfere with the matter under Article 226 of the Constitution of India as the writ petitions are not entertained against an order exercising the discretion this way or that way. For entertaining the writ petition there must be some statutory breach or jurisdictional error and in absence of that no interference should be made with the orders passed by the courts below.

I have heard learned counsel for the parties and perused the record.

From the perusal of the record, it transpires that as many as 13 issues were framed by the court below. The issue nos. 6 and 7 are reproduced hereinunder

6- D;k okn nQk 49 tks0p0v0 ls ckf/kr gS\

7- D;k okn dk ewY;kadu de fd;k x;k gS vkSj fn;k x;k U;k;'kqYd vi;kZIr gS\

The petitioner has given an application for deciding the Issue Nos. 6 and 7 together. This application was rejected on 4.4.2012 so far as it relates to Issue No. 6 which relates to the jurisdiction of the Court whereas with respect to Issue No. 7, the valuation of the suit and payment of court fees are concerned, the court below held that sufficient court fees has been paid.

The aggrieved petitioner has field revision that too has been dismissed.

While assailing these order, Sri Hasnain has placed reliance upon the division bench judgment of this Court in Mrs. Shahnaz Husain (supra). Relevant para of the aforesaid judgment is reproduced hereinunder :-

The above rule no doubt empowers a Court to set aside an order for injunction, but only if it comes to the conclusion that the party in whose favour the order of injunction was passed is delaying the proceedings or is otherwise abusing

the process of the Court. The learned Civil Judge had allowed both the amendment applications. It cannot be said the amendments sought were frivolous and intended to delay the proceedings. If some preliminary issues were raised, the Court was bounds to decide it at the earliest before it starts hearing the suit. The pleas regarding jurisdiction which cut at the very root of the suit should be decided as preliminary issues. If such issues are left to be decided at the final trial and after evidence the court comes to the conclusion that it had no jurisdiction to try the suit and returns the plaint for presentation before another Court, then the Court's valuable time will obviously be lost. Hence it cannot be said that by asking the Court to decide some preliminary issues the defendants had intended to delay the suit. We do not agree with learned counsel for the respondents that issues 14 and 18 could have been decided along with the whole suit.

In response thereto, the learned Senior Counsel, apart from the decision on which he has placed reliance, has also invited attention of the Court towards the amended provisions of Order 14 which is reproduced hereinunder :-

Sub-Rule 2 of Order 14

Court to pronounce judgment on all issues :- (1) 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.

(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 speaks 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 and Sub-Rule 2 (2) of Order 14 speaks 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 the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force.

The provisions contained in this Sub-rule 2 (2) of Order 14 appears to be directory in nature. From the bare reading of the Rule aforesaid, it transpires that although the statute requires that pure question of law relating to jurisdiction be decided first but where question of law depends upon investigation of fact, the Court may decide the same along with other issues after availability of sufficient material before the Court.

Hon'ble Supreme Court in Dattatraya Moreshwar Vs. The State of Bombay & Ors., AIR 1952 SC 181 has observed that a law which creates public duty is directory but if it confers private rights, it is mandatory. Relevant passage from this judgment is quoted below:-

"It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision

of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or

injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done."

A Constitution Bench of the Hon'ble Supreme Court, in State of U.P. & Ors., Vs. Babu Ram Upadhya, AIR 1961 SC 751, while considering the issue as to whether a provision contained in a Statute is mandatory or directory, observed as under:-

"For ascertaining the real intention of the Legislature, the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."

In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur, AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, AIR 1975 SC 2190, whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other.

In Sharif-Ud-Din Vs. Abdul Gani Lone, AIR 1980 SC

303, the Supreme Court, while considering the provisions of

Sub-section (3) of Section 89 of the J&K Representation of People Act, 1957, held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance of the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provision has to be construed as mandatory. The Apex Court held as under:-

"In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory.....Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

Similar view has been reiterated in Dinkar Anna Patil & Anr. Vs. State of Maharashtra & Ors., (1999) 1 SCC 354; Shashikant Singh Vs. Tarkeshwar Singh, AIR 2002 SC 2031; Balwant Singh & Ors., Vs. Anand Kumar Sharma & Ors., (2003) 3 SCC 433; Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors., AIR 2003 SC 511; and Chandrika Prasad Yadav Vs. State of Bihar & Ors., AIR 2004 SC 2036).

In view of the various decisions of the apex Court, it is clear that while holding a particular statute as mandatory or directory, it would be necessary to look into the intention of the Legislature. From a bare reading of the rule it transpires

that it is the discretion of the Court either to decide the question of jurisdiction at a first instance or at the time of decision of all other issues. The Divisional Bench of this Court in Manager Bettiah Estate (supra), on which Sri Singh has placed reliance, has observed as under :-

Only 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. It may however be made clear that 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. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof.

This view has been subsequently taken by the learned Single Judge of this Court in Mithlesh Kumari (supra). Here in this case, from the perusal of the judgment it transpires that the petitioner has raised question of jurisdiction taking shelter of Section 49 of the Act but the otherside has made allegation of fraud. The bar of jurisdiction in view of Section 49 of the Act may be the question of pure law but the pure law cannot be applied in air unless the facts are investigated particularly where there

are allegations of fraud. Here the revisional court in its judgment has observed in categorical words that since the fraud has been alleged therefore it would be appropriate to decide all the issues together and taking note of that, the revisional court has refused to interfere with the judgment passed by the Sub-Divisional Officer and rejected the petitioner's revision.

Otherwise also, it is settled law that if by reading of statute, two views are possible to be taken and one view has been taken by the court, that is not amenable for interference under Article 226 of the Constitution of India unless there is jurisdictional error or conclusion has been drawn in ignoring the statute or misreading/non consideration of the relevant materials available on record.

The learned counsel for the petitioner, except expressing his anxiety to save the time of the court, has not placed any material before the Court from which it can be inferred that Sub-Rule 2 of Order 14 of the Code of Civil Procedure mandate that the question of jurisdiction is to be decided first even if investigation of fact is required. In this case both the courts below have held that the issue no. 6 be decided along with other issues and the conclusion is based on sound reasoning i.e. to decide the bar of jurisdiction, investigation of fact is required which can only be arrived at after availability of evidence. The view taken by the courts below since are based on sound reasoning, therefore the same cannot be faulted with.

In view of foregoing discussions, I do not find any ground to interfere with the impugned orders. The writ petition fails and it is hereby dismissed.

However, keeping in mind the anxiety of counsel for both the parties and pendency of the matter before the Sub-

Divisional Officer for quite long time, it is observed that the Sub-Divisional Officer shall make his all endeavour to decide the suit expeditiously, if possible, within a period of one year from the date of production of certified copy of the order of this Court without granting any unnecessary adjournments to the learned counsel for the parties.

Order Date :- 2.5.2013

Pratima