Delhi High Court

Kusum Bansal & Anr vs Vishnu Kumar Gupta & Ors on 24 January, 2017

$~20

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Judgment delivered on: 24.01.2017
FAO(OS) 300/2016 & CM 38860/2016

KUSUM BANSAL & ANR                                                  ..... Appellants

                             versus

VISHNU KUMAR GUPTA & ORS                                           ..... Respondents

Advocates who appeared in this case:

For the Appellants           : Mr A.K. Singla, Sr. Adv. with Mr Rahul Shukla
For the Respondents          : Mr Harish Malhotra, Sr. Adv. with Mr Rajender Agarwal
For the Respondent no.1      : Mr Vijay Kr. Wadhwa

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR
                                 JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. The present appeal has been filed by defendant nos. 1&2 being

aggrieved by the order dated 16.09.2016 passed in CS(OS) 40/2016. The

said suit was filed by the respondent nos. 1&2. By virtue of the impugned

order dated 16.09.2016 issues have been framed and certain directions have

been given with regard to the manner of conduct of the trial.

2. Three points have been raised by the appellants. The first point is that

the learned Single Judge could not have directed the treatment of issue no.1

as a preliminary issue as the same was not in line with the provisions of

Order 14 Rule 2 of the Code of Civil Procedure, 1908 („CPC‟). The second

point urged by the learned counsel for the appellants was that the onus of

issue no.2 could not have been placed on the defendant nos. 1&2, that is, the

appellants herein. The third point raised by the learned counsel for the

appellants pertains to the directions given by the learned Single Judge that

the defendant nos. 1&2 (the appellants herein) should lead evidence first.

This was, of course, based on the premise that the onus of the main issue was

on defendant nos. 1&2.

3. The learned counsel for the respondents submitted that the issues have

been correctly framed and the onus of the issues has been correctly placed on

the respective parties. It was submitted that no interference with the

impugned order was called for.

4. Before we proceed with the examination of the rival contentions, it

would be appropriate if we set out the issues which were framed by the

learned Single Judge. They are as under:-

"(I) Whether the unregistered Memorandum of Partition dated 11th May, 1990 is capable of making the defendant No.l absolute owner of the property? OPD-1&2

(II) - Whether the Memorandum of Partition dated 11th May, 1990 and two Receipts of the same date of Rs.2 lakhs each purported to be executed by the plaintiffs have

been executed by the plaintiffs or the signatures thereon are not of the plaintiffs? OPD-1&2 (III) Whether the suit claim is within time? GPP

(IV) Whether the suit claim is barred by time for the reason of the plaintiffs having acquiesced to the Memorandum of Partition and Receipts dated 11th May, 1990? OPD-1&2 (V) Whether the suit is not properly valued for the purposes of court fees and jurisdiction and if so, to what effect? OPP

(VI) Relief."

5. By way of background, we may point out that in the suit filed by the

respondent nos. 1&2, inter alia, a decree of declaration in their favour and

against the defendants was sought whereby the Memorandum of Partition

dated 11.05.1990 and two Receipts dated 11.05.1990 were sought to be

declared as illegal, null and void and of no effect and not binding upon the

respondent nos. 1&2. Inter alia, a prayer was also made seeking a decree of

declaration, in favour of the respondent nos. 1&2 and against the defendants,

that the gift deed dated 26.11.2012 executed by the defendant no.1 in favour

of the defendant no.2 was illegal, null and void and of no effect insofar as it

related to the plaintiffs‟ alleged 2/3rd share in the property No. 12/18, East

Punjabi Bagh, New Delhi- 110026. A prayer was also made for a

preliminary decree of partition declaring the plaintiff nos. 1&2 (respondent

nos. 1&2 herein) as owners of 1/3rd share each in property no. 12/18, East

Punjabi Bagh, New Delhi- 110026, and that the balance 1/3rd share

belonging to either defendant no.1 or defendant no.2 and for a Local

Commissioner to suggest a mode of partition and to divide the property

subsequently by metes and bounds in terms of the preliminary decree.

6. From this it is evident that suit was essentially one for declaring the

Memorandum of Partition and the two Receipts as being illegal, null and

void and for declaring the gift deed also being illegal, null and void and for a

decree of partition. Other reliefs were also claimed but in essence this was

the nature of the suit.

7. It is in this context that the issues have been framed by the learned

Single Judge after examining the pleadings.

8. The first point that we need to address is the question as to whether

issue no.1 could at all be treated as a preliminary issue. Order 14 Rule 2 of

the CPC reads as under:-

"2. 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. "

9. On a plain reading of the said provision, it is evident that judgment has

to be pronounced by the court on all issues, notwithstanding the fact that the

case may be disposed of on a preliminary issue. This is, of course, subject to

the provisions of Sub-Rule (2) of Rule 2 of Order 14 which clearly indicates

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. But, this is also subject to a

further condition that the issue must relate to either:-

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force.

In the present case the first alternative clearly does not apply because there is

no issue relating to the jurisdiction of the court. In our view, even the second

alternative is not attracted. The issue must not only be one of law but, it

must also relate to a bar to the suit created by any law for the time being in

force. In the present case it is the plaintiffs (respondent nos. 1&2 herein)

who are insisting that issue no.1 be tried as a preliminary issue. It is

somewhat incongruous for them to say so because then they would have to

say that the issue relates to a bar to a suit which has been filed by them. This

would be akin to cutting the very branch on which one is sitting. In our

view, therefore, the issue no.1 as framed cannot be regarded as a preliminary

issue as it does not fall within either of the two categories of issues

mentioned in Order 14 Rule 2 (2) of the CPC.

10. Order 14 Rule 2 of the CPC was the subject matter of interpretation

before the Supreme Court in the case of Foreshore Co-operative Housing

Society Limitd v. Praveen D. Desai: (2015) 6 SCC 412. In that case the

Supreme Court noted the difference brought about by the amendment to

Order 14 Rule 2 and observed as under:-

"37. Order 14 Rule 2 of the Code of Civil Procedure as it existed earlier reads as under:

"2. Issues of law and of fact.- 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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined."

38. A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the court to try the issues of law in the first instance and to postpone the settlement of issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the court that notwithstanding that a case may be disposed of on a preliminary issue, the court has to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the court that if 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. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the court or a bar to the suit created by a law in force."

(underlining added)

11. It is, therefore, clear that under the provision as it exists today there is

a mandate to the court that, notwithstanding the fact that the case may be

disposed of on a preliminary issue, the court has to pronounce judgment on

all issues. The only exception is contained in Sub-Rule (2), which relaxes

the mandate to a limited extent by conferring discretion upon court that if

court is of the opinion that the case or any part thereof could be disposed of

on a issue of law only it may try the issue first. This discretion is, as pointed

out by the Supreme Court, further limited by the fact that the issue of law

must also relate to either the jurisdiction of the court or a bar to the suit

created by a law in force. In the present case neither of these two situations

exist. As such the normal rule would have to be followed and that is that the

court has to pronounce judgment on all issues. Therefore, the learned Single

Judge‟s direction that issue no.1 be tried as a preliminary issue cannot be

sustained and the impugned order to that extent is set aside.

12. Insofar as the question of onus with regard to issue no.2 is concerned,

after hearing the counsel of the parties, we are of the view that the said issue

be re-formulated as under:-

" Whether the Memorandum of Partition dated 11.05.1990 and the two Receipts of the same date of Rs. 2 lakh each are null and void and of no effect as they are not said to have been executed by the plaintiffs? OPP."

13. Finally, we come to the third aspect which has been raised by the

learned counsel for the appellants and that pertains to the direction in

paragraph 18 of the impugned order requiring the defendant nos. 1&2

(appellants herein) to lead evidence first. In view of the direction given by

us on the first two aspects and the change of the onus on issue no.2 after the

same has been re-framed, it becomes clear that it is the plaintiffs who are to

lead evidence first. As such, the plaintiffs shall file their affidavits by way of

Examination-in-Chief of all the witnesses within eight weeks from today.

14. The learned counsel for the respondent nos. 1&2 states that there are

certain admissions in the written statement which have been filed on behalf

of the defendant nos. 1&2 (appellants herein) on the basis of which he may

seek a judgment on admission. He requests that it may be clarified that this