Mohammad Yasin vs Abdul Kalam And Anr.
1987 Latest Caselaw 194 Del

JUDGMENT

B.N. Kirpal, J.

(1) The petitioner-herein had filed a suit for possession of a portion of a Dallan in premises bearing Municipal No. 857 Katra Hindu Farash Khana, Delhi. In the suit the petitioner had valued the same, for the purpose of court fee and jurisdiction, at Rs. 500.00 . Written statement was filed by the respondents in which one of the pleas which was raised was that the value of the property was more than Rs. 25,000.00 .

(2) The said suit was filed in the year 1978. In 1979 two issues were framed. One of the issues which was framed was "whether the suit has not been valued properly for the purpose or court fee and jurisdiction ? OPD". The other issue which was framed was "Whether the defendants have taken illegal possession of the suit premises ? OPP". The third issue was of Relief.

(3) Though the issues were framed in the year 1979, no evidence has so far been recorded in the suit. I am told that a number of dates were fixed for evidence of the parties but for different reasons the case was always adjourned. On 20th December, 1985 the respondents/ defendants moved an application under Order 14 Rule 2 praying that the first issue be treated as a preliminary issue. The trial court, vide the impugned order dated 22nd March, 1986, came to the conclusion that the said issue pertains to the jurisdiction of the court to try the suit and, therefore, it should be treated as a preliminary issue. The application filed by the respondents was accordingly allowed. It is this order which is challenged before me.

(4) On behalf of the petitioner, while placing reliance on the decision in the case of Hardwari Lal v. Pokhar Mal and others, Air 1978 Punjab & Haryana 230, it has been contended that where evidence has to be recorded then preliminary issue cannot be framed. According to the learned counsel, with the amendment of Order 14 Rule 2 with effect from 1st February, 1977, the court is bound to decide all the issues together and it is only on an issue of law pertaining to jurisdiction of the court that a preliminary issue can be decided first, provided the issue of law does not involve investigation into the facts.

(5) Order 14 Rule 2, after its amendment with effect from 1st February, 19/7, reads as follows : "2.(l) 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." Rule 2(1) now provides that the court shall pronounce judgment on all the issues. This provision is mandatory, but is subject to the provisions of subrule (2). Sub-rule (2) gives a discretion to the court to frame a preliminary issue of law only if it relates to the jurisdiction of the court or to a bar to the institution of the suit itself. Therefore, in order to treat an issue as a preliminary issue, two conditions have to be satisfied. Firstly, it has to be an issue of law and, secondly it must pertain to the jurisdiction of the court to try the suit or pertain to the institution of the suit itself by reason of a bar created by any law.

(6) I am unable to agree with the contention of the learned counsel for the petitioner that the issue of law pertaining to jurisdiction or to the maintainability of the suit must be such in which no evidence at all is to be recorded. The expression "issue of law" occurring in sub-rule (2) of Order 14 Rule 2 is in contra-distinction to the expression "issue of fact". Whether the court has the jurisdiction to try the suit or may not solely be a question of fact. It may be a question of law or a mixed question of fact and law. In my opinion, even a mixed issue of fact and law, but which pertains to the jurisdiction of the court to try the suit, would be covered by order 14 Rule 2(2). The reason for this is obvious. If the court has no jurisdiction to try the suit then its decision on other issues arising in the case would be of no avail. If no suit is maintainable then the court would have no jurisdiction to give any decision on any other issue arising in the suit. Order 14 Rule 2 has been amended with a view to expedite the trial of the suit. Previously all legal issues on which the suit could be disposed of could be tried as preliminary issues. Now a restriction has been placed by the amendment and the restriction is that it is only that preliminary issue pertaining to the jurisdiction of the court or the maintainability of the suit which can be tried as a preliminary issue. If in deciding the jurisdiction of the court or the maintainability of the suit some evidence has to be recorded, that does not mean that the court would have no jurisdiction to direct such an issue to be treated as a preliminary issue. The trial court, therefore, in my opinion, was right in coming to the conclusion that the issue with regard to jurisdiction could be tried as a preliminary issue.

(7) In the present case, however, as already noted, the issues were framed in 1977. The respondents took no steps to file any application under Order 14 Rule 2 praying that the said issue be treated as a preliminary issue. It is no doubt true that in the written statement it was stated that this should be treated as a preliminary issue but the court, while framing the issues in 1979, did not exercise its discretion in favor of the respondents/defendants. The question which arises is whether the trial court was justified in directing, six years after the issues had been framed, that one of the issues tried as a preliminary issue. The words "and for that purpose may, if it thinks fit, postpone the settlement of the other issues......" occurring in Order 14 Rule 2(2) seems to indicate that the trial court has to decide the question as to whether to treat an issue as a perliminary issue or not at the time of settlement of issues. Once the issues are settled, then ordinarily under Order 14 Rule 2(1) together. The discretion which is given to the trial court under sub-rule(2) of all the issues are to be disposed of together. The discretion which is given to the trial court under sub-rule (2) of order 14 rule 2 is firstly whether to frame a preliminary issue or not and, secondly to postpone the settlement of other issues. It is open to the trial court to frame all the issues but still say, at the time of framing of the issues, that a particular issue will be treated as a preliminary issue provided, of course, that that issue pertains to the jurisdiction of the court or to the maintainability of the suit. The intention of the Legislature being that the disposal of the suit should be expedited, it would not be proper to construe the provision in such a way as to give an opportunity to the defendant to approach the court after a number of years and apply for treating one particular issue as a preliminary issue. This is precisely what has been done by the respondents in the present case. The proper time for insisting that a preliminary issue be framed was in 3979 when the issues were originally settled. Once the issues are settled then the court would not be justified, especially after lapse of 6 years, to order that one of the issues should be tried as a preliminary issue. The trial court, therefore, erred in the present case in exercising its discretion in directing the issue with regard to jurisdiction to be regarded as a preliminary issue.

(8) For the aforesaid reasons, the revision petition is allowed. The impugned order of the trial court is set-aside and the trial court is directed to dispose of the suit in accordance with the provisions of Order 14 Rule 2(1) of the Code of Civil Procedure, Parties to bear their own costs.