Citation Codes

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Case Number

Civil Revn. No. 222 of 1979*

Attorney(S)

S.Mohanty
S.C.Basa
R.N.Acharya
R.K.Mohapatra
Prasanta Mohanty
A.N.Mishra

Judges

R.C Patnaik, J.

Acts

Rule 2 of Order 14 of the Code of Civil Procedure
Clauses (a) and (b) of sub-rule (2)
provisions of sub-rule (2),
sub-rule (1) of R. 2
(b) of sub-rule (2)
Rule 2 of O. 14,
sub-rule (2)

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Smart Summary

Judicial Summary — Revision challenging refusal to decide res judicata as a preliminary issue under Order 14, Rule 2, C.P.C.

Factual and Procedural Background

A revision was filed against an order of the Munsif, Bhadrak, which rejected the petitioner's request to decide the question of res judicata as a preliminary issue under Order 14, Rule 2 of the Civil Procedure Code.

Brief facts leading to the application:

Opposite Party No. 1 (the plaintiff in the suit) filed a suit for partition claiming title by purchase under a sale deed dated 16-1-70 from defendant No. 2.
Defendant No. 4 contested the suit, claiming to have purchased the entire two decimals under a sale deed dated 15-4-68 and asserting that Gura (defendant No. 2) was not the daughter of Hadi Das and Jema as alleged by the plaintiff but was the daughter of Rama Das.
Defendant No. 4 alleged that an earlier suit (filed by one Minki and contested by Gura) had raised and decided the issue whether Gura was the daughter of Hadi Das or Rama Das, and that the earlier finding—according to defendant No. 4—was that Gura was not the daughter of Hadi Das.
Defendant No. 4 argued that the earlier finding operated as res judicata and, therefore, plaintiff's purchase did not confer title.
On the pleadings, an issue was framed: “Is the suit barred by the law of res judicata?”
Defendant No. 4 applied under Order 14, Rule 2, C.P.C. for the res judicata question to be tried as a preliminary issue before other issues.
The plaintiff and defendant No. 2 objected, contending they were not parties to the earlier suit, that title was claimed through Gura as daughter of Jema and niece of Malli, that the issue did not relate to jurisdiction or a statutory bar, and that deciding the issue preliminarily would not finally dispose of the suit.
The learned Munsif rejected defendant No. 4’s prayer to try the res judicata issue preliminarily. This revision challenges that order.

Legal Issues Presented

Whether the question of res judicata raised by defendant No. 4 could be tried as a preliminary issue under Order 14, Rule 2, C.P.C.
Whether refusal of the trial court to try such a preliminary issue involves any question touching the jurisdiction of the court and hence is amenable to revision.

Arguments of the Parties

Defendant No. 4's Arguments

Moved under Order 14, Rule 2, C.P.C. to have the question of res judicata (whether Gura was the daughter of Hadi Das or Rama Das) decided as a preliminary issue.
Asserted that an earlier suit produced a finding that Gura was not the daughter of Hadi Das, and that this finding operated as res judicata, thereby defeating plaintiff’s title by purchase.
Contended that deciding the res judicata issue first would dispose of the suit (or at least bar the plaintiff from relying on the claimed transaction).

Plaintiff and Defendant No. 2's Objections

Argued neither they nor defendant No. 2 were parties to the earlier Original Suit No. 46 of 1970 (culminating in Second Appeal No. 149 of 1976) and therefore they were not bound by any finding in that suit.
Pointed out that the plaintiff claimed title through Gura as successor to Jema and Malli (i.e., as daughter of Jema and niece of Malli), so even if it were found that Gura was not the daughter of Hadi Das, that would not necessarily defeat the plaintiff’s claim.
Contended the issue did not relate to the jurisdiction of the court nor to a statutory bar to the suit, and that deciding the issue preliminarily would not finally dispose of the suit and would make it necessary to decide other issues thereafter.

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)	Under the Old Code (pre-amendment), O.14 R.2 allowed trying issues of law first only where the whole suit may be disposed of on issues of law alone; court could not try mixed questions as preliminary issues.	The court relied on this authority to explain the position under the Old Code and to show that mixed questions of law and fact could not be tried as preliminary issues; used as background to the amended provision.
Ram Saraf v. Mani Dei (AIR 1969 Orissa 295)	Law that the suit should be tried as a whole and not piecemeal unless it involves jurisdiction; preliminary trial generally appropriate only where it prevents harassment (e.g., objection to jurisdiction based on valuation).	Cited to underscore the desirability of trying cases as a whole and to caution against piecemeal trial, harassment and remands.
Basti Ram Roop Chand v. Radhey Shyam Gulab Chand (AIR 1973 All 499)	Under Rule 2 of Order 14, the court is bound to try as a preliminary issue a question of law that would dispose the entire suit, but cannot try issues that are mixed law and fact as preliminary issues.	Reinforced the proposition that only pure questions of law that dispose the suit may be tried preliminarily; mixed questions are excluded.
Ghatmal Champalal v. Amaravathi Dyeing Pvt. Ltd. (AIR 1976 Andh Pra 70)	The general rule of procedure is that the court should give its decision on all issues in the case to avoid unnecessary remand and protraction of litigation.	Used to support the rule preferring full-trial resolution of all issues to avoid remands and delays.
Ramdayal Umraomal v. Pannalal Jagannathji (AIR 1979 Madh Pra 153)	Discretion to try a preliminary issue of law relating to jurisdiction or a statutory bar should be exercised only when it is clear that the decision will finally decide the suit without recording evidence.	Quoted to show the narrow circumstances in which the discretion to try a preliminary issue should be exercised.
Dhirendranath Chandra v. Apurba Krishna Chandra (AIR 1979 Pat 34)	Explains sub-rule (1) and (2) of amended R.2; departure from pronouncing judgment on all issues is limited to the circumstances in sub-rule (2) and the court has discretion, not an obligation, to try such preliminary issues.	Relied on to emphasize that even when an issue falls within Clauses (a) or (b) of sub-rule (2), the court's decision to try it first is discretionary and refusal does not affect jurisdiction.
Cheni Ram v. Shanti Devi (AIR 1980 Raj 192)	Example where a territorial jurisdiction question required evidence to find where cause of action arose; though related to jurisdiction, it was not a pure question of law and thus not suitable for preliminary decision.	Cited to illustrate that jurisdictional questions requiring factual inquiry are not to be tried as preliminary issues.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, strictly as set out in the opinion:

The court noted the relevant amendment to Order 14, Rule 2 by Central Act 104 of 1976, which replaced the Old Code provision and placed a new emphasis on pronouncing judgment on all issues while allowing limited discretion to try a preliminary issue of law only in specified circumstances.
The court contrasted the Old Code position (under which the court could try issues of law first where the whole suit might be disposed of on issues of law alone, but could not try mixed issues preliminarily) with the amended provision which confers discretion and restricts preliminary trials to issues that relate to (a) the jurisdiction of the court or (b) a bar to the suit created by any law for the time being in force.
The court observed that the heading of the amended provision—“Court to pronounce judgment on all issues”—and the wording of the sub-rules show a shift from a mandatory to a discretionary approach. Sub-rule (1) directs pronouncement on all issues; sub-rule (2) permits the court, in its discretion, to try an issue of law first but only if it falls within clauses (a) or (b).
Citing authorities (including Dhirendranath Chandra and Ramdayal Umraomal), the court explained that even where an issue falls within clauses (a) or (b), the trial court has a discretion to try it first and is not obliged to do so. A refusal to try such an issue preliminarily does not ordinarily touch the court's jurisdiction and therefore does not make a revision application competent on jurisdictional grounds.
Turning to the facts, the court held that the issue of res judicata as formulated would not be a pure question of law. Its determination would depend on findings of fact which required evidence to be led by the parties. The court noted that even if the res judicata issue were decided against the plaintiff, it would not necessarily bring the suit to an end because the plaintiff claimed title through Gura as successors to Jema and Malli; hence, the finding would not inevitably dispose of the suit.
Given these considerations—the amended statutory scheme restricting preliminary trials to pure legal questions of jurisdiction or statutory bar, the discretionary nature of that power, the factual and mixed character of the res judicata issue in this case, and the likelihood that the suit would not be finally disposed of—the court concluded that defendant No. 4's move to have the res judicata question tried preliminarily was misconceived.
The court further concluded that refusal by the learned Munsif to try the preliminary issue did not implicate the jurisdiction of the court and therefore the present revision was not competent on that ground.

Holding and Implications

Holding: Revision dismissed.

Consequences and immediate effects as stated in the opinion:

The order of the learned Munsif rejecting defendant No. 4’s prayer to decide the res judicata issue as a preliminary issue is upheld by this Court; the revision has no merit and is dismissed.
There will be no order as to costs.
The court explicitly held that refusal to try a preliminary issue under the amended Rule 2 does not involve a question touching the jurisdiction of the court, rendering the present revision incompetent on that short ground.

Broader implications noted by the court (limited to the text): the opinion emphasizes that under the amended O.14 R.2 the trial court has a circumscribed discretion to try preliminary issues only when they are pure questions of law relating to jurisdiction or a statutory bar; mixed issues or questions of fact cannot be decided as preliminary issues. The opinion does not purport to lay down a novel precedent beyond applying the amended provision and existing authorities to the facts of this case.

Revision dismissed.

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Bairagi Ch. Das v. Kartik Chandra Das And Others Opposite Parties.

1. This revision is directed against an order passed by the Munsif, Bhadrak, rejecting the prayer of the petitioner to decide the question of res judicata as a preliminary issue under O. 14, R. 2 of the Civil P.C

2. Brief facts leading to the application are:

Opposite Party No. 1 filed a suit for partition on the basis of his purchase under sale deed dated 16-1-70 from defendant No. 2. Defendant No. 4 mainly contested the suit claiming to have purchased the entire two decimals under sale deed dated 15-4-68. According to the said defendant, Gura (defendant No. 2) was not the daughter of Hadi Das and Jema as alleged by the plaintiff and sister of Makari, his vendor. His specific case was that Gura was the daughter of one Rama Das and had no connection with the family of Hadi Das. So, the purchase of the plaintiff was from an imposter. It was further alleged that in a previous suit filed by one Minki which was being contested by Gura, an issue was raised as to whether Gura was the daughter of Hadi Das or Ram Das and it was decided by this Court that Gura was not the daughter of Hadi Das. He averred that the said finding in the earlier suit operated as res judicata and in view of the said finding, by the purchase the plaintiff did not acquire any title.

3. Having regard to the pleadings, an issue was struck as follows:

“Is the suit barred by the law of res judicata?”

When the case was taken up for hearing, defendant No. 4 filed an application under O. 14, R. 2, C.P.C for deciding the question of res judicata as a preliminary issue before trial of other issues. The plaintiff and defendant No. 2 filed objections stating that neither he nor defendant No. 2 being parties to Original Suit No. 46 of 1970 culminating in Second Appeal No. 149 of 1976, they were not bound by any finding and moreover, they pleaded that title in the property was claimed by Gura not as the daughter of Hadi; but as daughter of Jema, and niece of Malli, who were the recorded owners. According to them, it did not matter if it was found that Gura was not the daughter of Hadi Das. They, however, contended that the issue did neither relate to jurisdiction of the court nor to a bar to the suit created by any law for the time being in force. They further urged that the decision of the issue would not finally dispose of the suit and it would be necessary to decide the other issues.

The learned Munsif rejected the prayer of defendant No. 4. Hence this revision.

4. The provision contained in O. 14, R. 2 of the Civil P.C was amended by Central Act 104 of 1976. Under the Old Code, O. 14, R. 2 read as follows:—

“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 that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined”.

5. Interpreting the provision in the Old Code, the Supreme Court in S.S Khanna v. F.J Dillon (AIR 1964 SC 497) held (at p. 498):—

“Under O. 14, R. 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 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.”

G.K Misra, J. (as his Lordship then was) in Ram Saraf v. Mani Dei (AIR 1969 Orissa 295) succinctly stated the law as (at pp. 295-296):—

“It is well known that the suit must be tried as a whole and not piecemeal unless it involves the question of jurisdiction. For instance, if the valuation of the suit be such that it will oust the jurisdiction of the court before whom it was instituted, then in such cases ordinarily this issue should be tried as a preliminary issue to prevent unnecessary harassment to the litigants. But in all other matters it is always desirable that the cases should be tried as a whole, so that it would not be remanded times without number from the appellate court to re-examine other matters left undecided………”

Harassment to the parties, protraction of the trial and unnecessary waste of time were the considerations disfavouring piecemeal trial.

Similarly, in Basti Ram Roop Chand v. Radhey Shyam Gulab Chand (AIR 1973 All 499) it was held (at p. 500):—

“……Under Rule 2 of Order 14 of the Code of Civil Procedure while the court is bound to try as preliminary issue a question of law on which the entire suit may be disposed of but where the question is not purely of law or it is a mixed question of law and fact, the court has no jurisdiction to try issue as a preliminary issue……..”

In Ghatmal Champalal v. Amaravathi Dyeing Pvt. Ltd. (AIR 1976 Andh Pra 70), Madhava Rao, J. held:

“The salutary rule of procedure which must be generally followed is that the Court should give its decision on all the issues in the case so as to avoid unnecessary remand and protraction of litigation.”

An exception, however, was made in favour of question of territorial jurisdiction. Under the old Code a duty was cast on the court to try preliminarily the issues of law which would dispose of the case or any part thereof.

6. However, the experience of six decades indicated that the provision was resulting in protracted litigations involving frequent remand, harassment to parties and was unwholesome. So, the provision was substituted by Central Act 104 of 1976 by substituting R. 2 of O. 14 as hereunder:—

“Rule 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 the 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 the issue has been determined, and may deal with the suit in accordance with the decision on that issue.”

7. It may be observed that the heading gives a direction to the provision by stating “Court to pronounce judgment on all issues”. Instead of casting a duty on the court, as under the Old Code by the use of the expression ‘shall’, a discretion is conferred by using the expression ‘it may try that issue first’.

8. The new provision makes it abundantly clear that the court in its discretion may try an issue of law only 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. An issue of fact or a mixed issue of fact and law cannot be decided as a preliminary issue. Where an issue of jurisdiction is a question of fact or is a mixed question of law and fact, it cannot be decided as a preliminary issue; but it should be decided on merits along with the other issues. The object being avoidance of piecemeal trial and protracted litigation, in case of doubt all the issues should be tried at one and the same time.

In Ramdayal Umraomal v. Pannalal Jagannathji (AIR 1979 Madh Pra 153), the Full Bench obseved (at p. 155):—

“…… Discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence.”

In Dhirendranath Chandra v. Apurba Krishna Chandra (AIR 1979 Pat 34), if was held (at pp. 35-36):—

“…… It is, therefore, clear that a departure from the ordinary rule provided in sub-rule (1) of R. 2 can be made by the Court only in the circumstances mentioned in sub-rule (2) and even in these circumstances the Court has only a discretion that it may try an issue of law relating to the points mentioned in Clauses (a) and (b) of sub-rule (2) as a preliminary issue before framing other issues. There is, however, nothing in sub-rule (2) which makes it obligatory for the Court to try such an issue first in all eases. If, therefore, the Court is of the opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in Cls. (a) and (b) of sub-rule (2) as a preliminary issue, it commits no error touching jurisdiction………”

In Cheni Ram v. Shanti Devi (AIR 1980 Raj 192), a question arose whether the court had territorial jurisdiction. To decide the said question, it was necessary to take evidence to find out the place where the cause of action arose. The question though related to jurisdiction, the prayer was rejected as the question was not a pure question of law.

9. Before the amendment the position had been made clear by the Supreme Court in Khanna v. Dillon (AIR 1964 SC 497) (supra). Any doubt that may have lingered thereafter was set at rest by the clear provision in the amended R. 2.

10. Moreover, the trial of the suit on a preliminary issue being discretionary under the amended Rule 2 of O. 14, refusal of the court to decide the issue as a preliminary issue does not involve any question touching jurisdiction of the court. This revision application is, therefore, not competent on this short ground also.

11. In this case, the issue sought by defendant No. 4 to be decided as a preliminary issue was not a question of law. The determination would depend upon determination of certain facts which could be established by the parties leading evidence and assuming the answer of this issue of res judicata going against the plaintiff, it did not bring an end to the suit; but would bar trial of that very question at issue. As the pleadings show, the plaintiff has claimed title through Gura as successors to Jema and Malli.

12. Considering it from any angle, the move of defendant No. 4 was misconceived and this revision accordingly has no merit and is dismissed. In the circumstances, there would be no order as to costs.

Revision dismissed.

Bairagi Ch. Das v. Kartik Chandra Das And Others Opposite Parties.

Judicial Summary — Revision challenging refusal to decide res judicata as a preliminary issue under Order 14, Rule 2, C.P.C.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendant No. 4's Arguments

Plaintiff and Defendant No. 2's Objections

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bairagi Ch. Das v. Kartik Chandra Das And Others Opposite Parties.

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