Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P Nos. 3054 & 3055 of 1998 and C.M.PNos. 15289 and 15290 of 1998

Advocates

Mr. T. Arulraj, Advocate for Petitioners.
Mr. M.S Krishan, Advocate for Respondent.

Judges

E. Padmanabhan, J.

Acts

provisions contained in Rule 2 of the Order 14
Order 14, Rule 2 Code of Civil Procedure,
Sub-Rule (2) of the Rule 2 of Order 14.
Sub-Rule(2) of Rule 2 of Order 14
Order 14 Rule 2 CPC
Rule 2 of Order 14
Order 14, Rule 2

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This opinion concerns two revision petitions (C.R.P. No. 3054 of 1998 and C.R.P. No. 3055 of 1998) that challenge interlocutory orders dated 2.9.1998 arising out of I.A. No. 612 of 1998 in O.S. No. 222 of 1996 and I.A. No. 613 of 1998 in O.S. No. 17 of 1998, both on the file of the Subordinate Judge, Uthagamandalam, Nilgiris District. The suits in question were instituted in 1990, and written statements were filed in 1991. Evidence in both suits was largely completed before the interlocutory applications seeking to have the question of jurisdiction tried as a preliminary issue were filed (one application was filed on 13.4.1998 after examination of witnesses). The trial court rejected the applications to try the jurisdictional point as a preliminary issue, holding them belated and not maintainable. The division of identical questions led this court to hear both revision petitions together. Mr. T. Arulraj appeared for the petitioners; Mr. M.S. Krishnan appeared for the contesting respondent.

Legal Issues Presented

Whether an application to decide the jurisdictional issue as a preliminary issue can be entertained at the stage when the suit has been pending since 1990, the written statement filed in 1991 and the evidence (including examination of witnesses) has already been recorded.
Whether the question of jurisdiction in these suits is a mixed question of law and fact (and therefore unsuitable to be decided as a preliminary issue) or a question of law simpliciter capable of being decided separately under Order 14 Rule 2 CPC.
Whether the trial court was correct to refuse the application as belated and not maintainable in the facts of these cases.

Arguments of the Parties

Petitioners' Arguments (as presented by Mr. T. Arulraj)

The petitioners urged that no part of the cause of action arose within the jurisdiction of the Subordinate Judge, Uthagamandalam.
They stressed factual points: the suit property is at Bangalore and the defendant is a permanent resident of Madras, supporting the contention that jurisdiction did not lie with the court below.
On that basis, they contended the court below was obliged to decide the jurisdictional issue as a preliminary issue rather than leaving it to be decided at the final stage.
Counsel sought to rely on pleadings and portions of witness depositions in support of the contention that jurisdiction could be determined without a full trial on the merits.

Respondent's Arguments (as presented by Mr. M.S. Krishnan)

The respondent relied on binding authorities of the Supreme Court and this court concerning the scope of Order 14 Rule 2 CPC and its application to jurisdictional issues.
He argued that the jurisdictional question in these suits is a mixed question of law and fact requiring consideration of evidence, and therefore not appropriate for determination as a preliminary issue at the late stage when trial and evidence recording had already been completed.
He relied on precedent to support the position that a belated application to try jurisdiction as a preliminary issue should be refused where issues of fact need to be resolved or where the application is made after participation in trial proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497	Interprets Order 14 Rule 2 CPC: where issues of law and fact arise together, the court may try issues of law first only if the suit (or part thereof) can be disposed of on issues of law alone; the Code does not permit trying mixed issues of law and fact as preliminary issues; deciding mixed questions at threshold may produce a lopsided trial.	The court applied this principle to conclude that the jurisdictional issue in these suits is, in part, a mixed question of fact and law and therefore not amenable to being decided as a preliminary issue at this stage.
N. Dhanalakshmi and others v. S. Eknathan, Proprietor Eknath Real Estates, 1998 (I) MLJ 132	Holds that where the issue of jurisdiction requires oral evidence, it can be decided along with other issues at the time of trial; a belated application to try jurisdiction as preliminary after the suit is ready for trial is not appropriate.	The court relied on this authority to support the view that when the suit is ready for trial and the jurisdictional issue may require oral evidence, there is no need to try it as a preliminary issue and a late application can be refused.
M. Sadaksharavel v. State Bank of India, Coimbatore, 1995 (I) CTC 266	After amendment to Order 14 Rule 2, the general rule is that a suit should be disposed by judgment on all issues; the exception (Sub-Rule (2)) applies only where issues are purely legal and their decision can dispose of the suit or a part of it (e.g., jurisdiction or a statutory bar); mixed questions requiring evidence cannot be decided preliminarily.	The court used this precedent to conclude that the jurisdictional points in the present matters are mixed questions requiring evidence and thus could not properly be tried as preliminary issues, particularly at a belated stage.

Court's Reasoning and Analysis

The court proceeded by first noting that identical questions were raised in both revision petitions and that the suits were instituted in 1990 with written statements filed in 1991. The key factual posture was that the trial had proceeded to the point where evidence from both sides had been recorded before the interlocutory applications to try jurisdiction as a preliminary issue were filed (one application was filed on 13.4.1998 after examination of witnesses).

Applying the legal principles from binding authorities, the court analysed Order 14 Rule 2 CPC and its post-amendment scope. The court emphasized the following analytical steps, based on the material in the opinion:

Distinction between pure questions of law and mixed questions of law and fact: the court relied on the principle that only issues of law simpliciter that can dispose of the suit may properly be tried separately under Order 14 Rule 2; mixed questions requiring factual adjudication are unsuitable for preliminary trial.
Assessment of the pleadings and evidence: the plaint averments indicated that in these suits the cause of action was said to have arisen within the territorial jurisdiction of the court below (Uthagamandalam/Coonoor). The respondent disputed this factual assertion. Because the question of jurisdiction involved competing assertions of fact, the court concluded it was a mixed question.
Timing and belatedness: the court stressed that the applications to try jurisdiction as a preliminary issue were filed after substantial participation in the trial process (including allowing evidence to be recorded). The petitioners had not raised the jurisdictional point at the earliest available opportunity; they had "slept over the matter" and taken part in proceedings, which made the application belated and unsuitable to be entertained at that stage.
Risk of a lopsided or partial trial: relying on precedent, the court explained that deciding mixed issues prematurely (without full factual adjudication) risks a lop-sided trial and miscarriage of justice.

On this combined factual and legal analysis the court concluded that the trial court was right in rejecting the interlocutory applications: the jurisdictional issue here was mixed in nature, required consideration of evidence, and the applications were belated and therefore not maintainable at that stage.

Holding and Implications

Holding: Both revision petitions are dismissed. The orders dated 2.9.1998 (in I.A. No. 612 of 1998 in O.S. No. 222 of 1996 and I.A. No. 613 of 1998 in O.S. No. 17 of 1998) which refused to try the jurisdictional issue as a preliminary issue are upheld. Consequently, CMP Nos. 15289 and 15290 of 1998 are also dismissed. No costs were awarded.

Implications:

Direct effect on the parties: the interlocutory orders of the trial court stand; the petitioners' applications to have jurisdiction decided as a preliminary issue are refused and the revision petitions challenging those interlocutory orders have failed.
Broader precedent: the opinion rests on existing, binding authorities and applies well-established principles regarding Order 14 Rule 2 CPC and the propriety of trying jurisdictional issues as preliminary issues. The judgment enforces those principles in the facts before the court; the opinion does not purport to create a new legal principle beyond the application of cited authorities.

Show full summary ...

Major Ramachandran And Another Petitioners v. Mrs. Rema Jayarajan, Rep By Power Agent

1. In these revision petitions, this court ordered notice of motion to the contesting respondent.

2. Heard Mr. T. Arulraj, learned counsel appearing for the petitioners and Mr. M.S Krishan, learned counsel appearing for the contesting respondent.

3. As identical questions have been raised, these two revision petitions are disposed by this common order.

4. It is fairly stated by the counsel on either side that the points that are raised for consideration are identical in both the revision petitions. For the purpose of appreciating the contention, it is not essential to set out the factual matrix in detail in both the revision petitions.

5. C.R.P No. 3054 of 1998 has been filed challenging the fair and decretal order dated 2.9.1998 made in I.A No. 612 of 1998 in O.S No. 222 of 1996 on the file of the Subordinate Judge, Uthagamandalam. Nilgiris District, whereby the court below rejected the application to take out the jurisdictional issue as the preliminary issue. Admittedly the suits have been instituted during the year 1990 and the written statement has been filed during the year 1991. The Interlocutory Application has been taken out on 13.4.1998 after examination of witnesses. The application has been taken out to decide the jurisdictional issue as preliminary issue.

6. C.R.P No. 3055 of 1998 has been filed challenging the fair and decretal order dated 2.9.1998 made in I.A No. 613 of 1998 in O.S No. 17 of 1998 by which the request to decide the jurisdictional issue as a preliminary issue, had been rejected. This suit also came to be instituted in the year 1990 and the written statement has been filed in the year 1991. However the suit has been transferred to the file of the Sub-court, Uthagamandalam, to be tried jointly along with O.S No. 222 of 1996. In this suit also the evidence has been recorded and at that stage, application has been filed.

7. Mr. T. Arulraj, learned counsel appearing for the petitioner took the court through the pleadings as well as the depositions of witnesses and contended that no part of cause of action had arisen within the jurisdiction of the court below, that the suit property is located at Bangalore, and the defendant is a permanent resident of Madras and therefore, the court below is bound to decide the jurisdictional issue as the preliminary issue. The court below had considered both the applications and held that the applications are not maintainable and dismissed as belated, besides devoid of merits. As regards of question of jurisdiction, it is to be pointed out that according to the plaint averments, the cause of action arose within the jurisdiction of the court below. Any question relating to jurisdictional issue should have been raised at the earliest opportunity. The issue relating to the jurisdiction of the court, when it is a mixed question of law and fact, there is difficulty to decide the issue as preliminary issue. If it is purely a question of law, the trial court could take out the application on the basis of the preliminary issue. In the present case, the plaint averments would show that the cause of action for the suit arose at Uthagamandalam and Coonoor, as the case may be, within the jurisdiction of the court below. It may be that the defendant is the resident of Madras and that the property with respect to which the agreement is sought to be enforced is at Bangalore. In the other suit, the plaintiff had sought for recovery of original documents, entrusted to the defendant, after cancellation of the power of attorney and declaration that the power of attorney had already been terminated as the plaintiff is the resident of Coonoor. According to the plaint averments, entire contact had been concluded at Coonoor and this aspect is disputed by the defendant-petitioner. This controversy has to be decided only on the basis of the evidence, as there is assertion and counter assertion in this respect.

8. Both the suits are of the year 1990 and in both the suits written statements have been filed and the trial is already over as the evidence of both sides have been recorded. At this stage, the present application has been taken out to decide the jurisdictional issue as preliminary issue. In my view, the court below had rightly rejected the application as belated and legally it cannot be entertained, besides holding that it is a mixed question of law and fact which could be decided at the time of trial.

9. Mr. T. Arulraj, learned counsel appearing on behalf of the petitioners though strained himself and referred to a portion of the depositions as well as the pleadings, it is to be pointed out that a decision could be arrived at by the court below only at that time when the other issues are being considered and the judgment is rendered on merits, as the jurisdictional issue is a mixed question of law and fact.

10. Mr. M.S Krishnan, learned counsel appearing for the respondent relied upon a number of binding authorities of this court as well as the Supreme Court. It may not be necessary to refer all of the, In S.S Khanna v. F.J Dillon, AIR 1964 SC 497 the Supreme Court while considering the scope of Order 14 Rule 2 CPC held thus:

“All these contentions raised substantial issues of fact which had to be decided on evidence, and Dillon could not be non- suited on the assumption that the pleas raised were correct. At the threshold of the trial two problems had to be faced:

(1) Whether in a suit to enforce an agreement to repay an amount advanced in consideration of a promise to repay the same, in question as to ownership of the fund out of which the amount was advanced is material; and

(2) If the answer is in the affirmative, whether the fund in fact belonged jointly to Dillon and Khanna.

The Judge of the court of first instance unfortunately assumed without a trial an affirmative answer to both these questions. Under Order 14, Rule 2 Code of Civil Procedure, 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. 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 may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary 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.”

11. In N. Dhanalakshmi and others v. S. Eknathan, Proprietor Eknath Real Estates, 1998 (I) MLJ 132 the Division Bench of this court, had occasion to consider the very same aspect and held thus:

“The learned single Judge in the order under appeal, in the penultimate paragraph, has stated that even the issue regarding jurisdiction can be decided along with the other issues as the suit itself, is ready for trial, and there is no need to try the issue regarding jurisdiction as a preliminary issue. In paragraph 10 of the plaint, it is averred that the entire suit transaction was discussed and concluded at Madras during June 1990 and October, 1990. On the 7th October, 1990 an agreement was entered into, executed, and signed at Madras by the parties. In paragraph 9 of the written statement the defendants have specifically denied that the suit transaction was discussed and concluded at Madras and that the agreement was executed at Madras. This being the position, in our view, the learned Judge was right in stating that the issue as to jurisdiction could be decided along with other issues in the suit when the suit is ready for trial, particularly so when even the said issue may require oral evidence in the light of the pleadings of the parties. Added to this, the defendants did not file application to try issue No. 1 as a preliminary issue immediately after the issues were framed. They came forward with an application to try issue No. 1 as a preliminary issue relating to the jurisdiction only when the suit was set for trial.”

12. Raju, J. as he then was, who had occasion to consider the identical question in M. Sadaksharavel v. State Bank Of India, Coimbatore, 1995 (I) CTC 266 after considering the entire case law held thus:

“I have carefully considered the submissions of the learned counsel appearing on either side on the correctness or otherwise of the claim as also the need for determining the issues sought to be adjudicated as preliminary issues. The court below had chosen to reject the claim mainly, rather on the only ground that the adjudication of the issues sought to be tried and decided as a preliminary issue would also require oral and documentary evidence and that therefore, there was no justification in the plea on behalf of the petitioner to have the two issues raised tried as preliminary issues. In my view, after the amendment to the provisions contained in Rule 2 of the Order 14 by the substitution of a new rule in the place of the old Rule 2, the disposal of a claim made in the suit should be by pronouncing a judgment on all issues. Notwithstanding the fact that the case may be disposed of on a preliminary issue also. The exception carved out is only in respect of the issues visualised and specified under Sub-Rule (2) of the Rule 2 of Order 14. The learned counsel for the petitioner contended that the restriction or embargo placed under Rule 2 of Order 14 could be applicable only in respect of where the case itself would be disposed of and not in respect of cases where such a result would not follow as an unsuitable consequence upon the result of the main case itself. Though attractive the submission may appear to be, in my view, the same cannot withstand a close scrutiny and consideration. Accepting such a proposition would mean that in all cases where the adjudication of an issue may not result in the ultimate disposal of the claim or the case itself, the court can decide the issues as it likes or it suits the court. That in my view, could not be the object of the provisions contained in the Order 14, Rule 2 and an interpretation of that type, if countenanced, would defeat the very object of the amendment itself. The explanation carved out in Sub-Rule(2) of Rule 2 of Order 14 is only in respect of cases, where the issues are merely issues of law simpliciter and upon the decision of which the case or a part thereof may be disposed of and that too when it relates only to the jurisdiction of the court or in respect of a bar to the suit created by any law for the time being in force. Having regard to the nature of issues involved in this case which are sought to be got adjudicated as preliminary issues, it cannot be contended that the same could be decided merely as legal issues or issues of law only without the necessary factual basis or evidence in support or aid of the same. The questions involved particularly the plea of limitation could be only mixed question of fact and law and not merely an issue of law. The other issue relating to the legality and the propriety of the sale of the shares for gross under value is concerned, unless the necessary facts relating to the market value etc., are brought on record, there is no scope for deciding such an issue and therefore permitting a partial trial in respect of the two issues only at this stage resulting in the court undertaking a perfunctory exercise of power, may even lead to, as the Supreme Court is pleased to put it, a lopsided trial of the suit, and consequent miscarriage of Justice.”

The above authorities are binding and it is not necessary to refer to any further authority or precedent.

13. As already pointed out that the suits are of the year 1990 and the written statements have been filed in the year 1991, trial has commenced and in fact the examination of the witnesses has also been completed. At this stage, this application has been filed. It may be that the application is maintainable, but it is for the courts to decide the jurisdictional issue, which is a mixed question of law and fact and such an issue is not required to be answered as preliminary issue and at any rate at this belated stage. There is no escape as the petitioner had slept over the matter, taken part in the proceedings before the court below and allowed the recording of the evidence and thereafter had taken out the application. No useful purpose will be served to try the jurisdictional issue as preliminary issue at this belated stage, as the trial of the suits have already been completed. Further preliminary issue had to be decided on the basis of the pleadings, documents and oral evidence, as it is mixed question of law and facts along with other issues as well.

14. Under the circumstances, no case has been made out for the interference in both the revision petitions and hence they are dismissed. The order passed by the court below is not vitiated nor the order suffers with material irregularity or illegality. Both the revision petitions fail and are dismissed. Consequently, CMP. Nos. 15289 and 15290 of 1998 are also dismissed. No costs.

Major Ramachandran And Another Petitioners v. Mrs. Rema Jayarajan, Rep By Power Agent

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as presented by Mr. T. Arulraj)

Respondent's Arguments (as presented by Mr. M.S. Krishnan)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Major Ramachandran And Another Petitioners v. Mrs. Rema Jayarajan, Rep By Power Agent

Comments