Anjini Devi And Ors. vs V.S.T. Industries Ltd.
1996 Latest Caselaw 526 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The short question requiring consideration, in the present case, at this stage is as to which 'issue' can be treated as a "preliminary issue" within the meaning of Sub-rule (2) of Rule 2 Order Xiv of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). The facts relevant for the above purpose briefly stated are that the plaintiffs, named above, have filed the present suit for recovery of possession, damages, mesne profits in respect of the property being the entire first floor of A/18, Ram House, Middle Circle, Connaught Place, New Delhi, measuring 2175 Sq. ft. alleged to have been let out to the defendants w.e.f. 1.6.86 vide lease deed dated the 29th May, 1986 which was subsequently renewed upto 31.5.95. It is alleged that the lease has been determined by efflux of time. Notice dated 14.6.95, terminating the lease, in respect of the demised premises is also stated to have been served on the defendants. The defendants also filed written statement/ counter-claim to which the plaintiffs have filed replication/written statement.

(2) On the pleadings of the parties the learned Predecessor of this Court vide order dated 23.1.96 framed the following issues:

1. Whether the tenancy of the defendant is properly and legally terminated?

2.Whether the defendant is entitled to claim the continuance of the lease in his favour without the concurrence of the landlord in view of the terms of the lease deed dated 23.5.90?

3.Whether the document dated 27.1.1995 produced by the plaintiff is admissible in evidence?

4.Whether a new lease on fresh terms is created by the document of 27.1.1995?"

5.Whether the plaintiff is entitled to get the vacant possession of the suit property?

6.Whether the plaintiff is entitled to get Rs 3,01,543.75 towards the arrears of rent?

7.Whether the plaintiff is entitled to get Rs 22,300.00 towards non judicial stamp?

8.Whether the plaintiff is entitled to get Rs 32.625.00 towards mesne profits prior to the date of the suit?

9.Whether the defendant's counter claim is to be allowed?

10.What order and decree?

After the framing of the issues the parties were given the liberty to file additional documents. Since the parties did not file any additional documents the case was directed to be listed before this Court by the Joint Registrar(Original side) for fixing actual dates of trial. On 12.4.96 when the case came up for fixing actual dates of trial the learned Counsel for the plaintiffs submitted that before fixing actual dates of trial the parties be heard on the point as to whether out of the issues framed on 23.1.96, issues, other than issue No. 6,7 & 8 can be treated as preliminary issues. For hearing the learned Counsel for the parties on the above point the case was adjourned to 21.5.96. On 21.5.96 none appeared on behalf of the defendants. However the learned Counsel for the plaintiffs was present who made his oral submissions and also filed his written submissions on the above aspect.

(3) I have heard the learned Counsel for the plaintiffs and have also carefully gone through the written submissions filed by him. Order Xiv, Civil Procedure Code deals with the settlement of issues and determination of suit on issues of law or on issues agreed upon. As per Order Xiv Rule 1 Civil Procedure Code issues are of two kinds, namely, issues of fact and issues of law. Issues of facts are propositions of fact asserted by a litigant to make out his right to sue or defense and denied by the other side. Similarly issues of law are propositions of law asserted by one party and denied by the other. Legal circles recognise a third kind of issue, namely a mixed issue of law and fact which comprises propositions of law and fact inextricably tied up with each other in such a manner so that one of them cannot be decided without deciding the other though both of them have to be decided to find an answer to the issue. Order Xiv Rule 2 Civil Procedure Code lays down the provisions regarding the trial of preliminary issues. The Civil P.C.(Amendment) Act of 1976 (hereinafter referred to as 'the Amending Act of 1976') effected some changes in Order Xiv Rule 2, Civil Procedure Code also. Order Xiv Rule 2 Civil Procedure Code as it stands after the amendment runs in the following way -

"Court to pronounce judgment on all issues. 2. (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."

(4) The amended Order Xiv Rule 2 Civil Procedure Code thus restricts the discretion of the Court to try only an issue of law relating to jurisdiction of the Court or a bar of the suit created by any law for the time being in force as a 'preliminary issue'. The leading case on Order Xiv Rule 2 Civil Procedure Code is S.S. Khanna v. F.J. Villon, which laid down the law as under: "Under Order Xiv, Rule 2 where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for the purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit maybe disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit."

(5) True, this was a decision on the pre-amendment Order Xiv Rule 2. That, however, hardly makes any difference since the pre-amendment Order Xiv Rule 2 applied to all issues of law compulsorily whereas the post-amendment Order Xiv Rule 2 also applies to issues of law only but exclusively relating to jurisdiction and bar of suit though at the discretion of the Court. The above decision of the Apex Court, therefore, applies not only to the pre-amendment but to the post-amendment Order Xiv Rule 2 as well with full force. That is why this decision has been cited and followed by the Various High Courts throughout the Country both before and even after the post-amendment Order Xiv Rule 2 came into force. Thus in Estrela Batteries Ltd. v. Modi Industries, ; Bairagi v. Kartick, ; Madhabananda v. Spencer & Co. Ltd., ; Chemram v. Shanti Devi, ; Daljit Singh v. Joginder Singh, ; Mahima Ranjan v. Madan Mohan, [(1980) 84 Cal. Wn 426]; and Mahabir v. Bishwanath, following the principles laid down in S.S. Khanna v. F.J. Dillon, it has been held that only issues of law - and after the amendment those relating to jurisdiction and bar of suit only -may be tried as 'preliminary issues' under Order Xiv Rule 2 of the Code. It was also held that issues of fact and mixed issues of law and fact cannot be decided as preliminary issues.

(6) On a bare reading of the provisions of Sub-rule (2) Rule 2 of Order Xiv Civil Procedure Code it is clear that the tests laid down are stringent and their compliance is to be strictly enforced. This is because the provisions of Sub-rule (2) of Rule 2 Order Xiv Civil Procedure Code are in the nature of exception to the general procedure provided in Sub-rule (1) of Rule 2 Order Xiv CPC. From the provisions of the above said Sub-rule (2) it is further manifest that whether an issue is to be tried as a preliminary issue or not is at the discretion of the Court and while exercising its discretion the Court must be satisfied that the suit or any part thereof may be disposed of as an issue of law only and that the issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being inforce. Further in terms of the above provisions not all issues of law can be decided as 'preliminary issue' and only those issues of law can be decided as 'preliminary issues' which squarely fall within the ambit and scope of Clauses (a) & (b) of Sub-rule (2) of Rule 2 Order XlV CPC. Moreover, view of the replacement of the word 'shall' used in Order Xiv Rule 2 Civil Procedure Code by the word 'may' in the Civil Procedure Code as a result of amendment carried out in 1976 it is no longer obligatory for the Court to decide an issue of law as a preliminary issue. 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, in my opinion, justly aims at abridging the proceedings in suit rather than permitting prolongation thereof.

(7) If the above test is applied to the present case then by no stretch of imagination it can be stated that out of the issues framed on 23.1.96, issues other than issue No. 6,7 & 8 can be treated as 'preliminary issues' because the same in no way fulfill the requirements laid down by Order Xiv Rule 2 Sub-rule (2) Civil Procedure Code as amended by the Amending Act of 1976. The learned Counsel for the plaintiffs during the course of arguments and also in the written submissions has placed reliance on a decision of this Court in case Ved prakash Khullar & Ors. v. M/s Genelec Ltd. . In my opinion the above decision in no way helps the plaintiffs in so far as the above question is concerned because the facts of the above mentioned case and the present case are distinguishable. In .the present case, as per the averments of the plaintiffs a subsequent agreement dated the 27th January, 1995 is alleged to have taken place between the parties and the defendants have filed a counter claim in their written statement filed by them. In view of the above discussion in my opinion out of the issues framed on 23.1.96 issues other than issue No. 6,7 & 8 cannot be treated as 'preliminary issues'. The case be listed on 12th August, 1996 for fixing actual dates of trial.