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Balchand Meghraj Pamnani and anr. Vs. Basantidewi Ramswaroop and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 361 of 1971
Judge
Reported inAIR1972MP157; 1972MPLJ812
ActsCode of Civil Procedure (CPC) , 1908 - Order 14, Rule 2
AppellantBalchand Meghraj Pamnani and anr.
RespondentBasantidewi Ramswaroop and anr.
Appellant AdvocateS.K. Dubey, Adv.
Respondent AdvocateG.G. Mangal, Adv.
DispositionRevision allowed
Cases ReferredBench. See Bhagwan v. Ramchand
Excerpt:
- .....fd;k bldk izhkko7 lgk;rk ,oe o;;it is obvious enough that issues 1 & 2 relate to the merits of the suit. issue no. 3 is about the admissibility of the receipt on the basis of which the suit deposit was made. the objection was that it did not bear proper and adequate stamps. this point can certainly be raised and decided when the receipt is produced in evidence.3. when the issues were framed the trial court in its order dated july 6, 1971 stated that issues 3 to 5 are legal issues and should be tried as preliminary issues. i suppose the court meant to say issues 4 to 6 and not 3 to 5, because as would be pointed out just now issue no. 6 is undoubtedly a preliminary issue. the trial court fixed july 20, 1971 for hearing argument on the preliminary issues.4. the case could not be taken up.....
Judgment:
ORDER

Shiv Dayal, J.

1. This is a revision from an order dated August 10, 1971 whereby the trial Court has postponed the decision of Issues Nos. 3, 4, 5 and 6 till the decision of the entire suit. The grievance in this revision is that those issues are preliminary issues and the trial Court was bound to decide them first. In not doing so, the trial Court refused to exercise its jurisdiction and this Court must interfere under Section 115 of the Code of Civil Procedure.

2. The respondents Basanti Devi and Babulal have instituted this suit against the petitioners for recovery of a sum of Rs. 5,000/- on the allegation that they deposited the amount with the defendants, but they are not returning the amount. The suit is resisted by the defendants on several grounds. Six issues were framed in the trial Court, the seventh being a formal issue. They may be reproduced here:--

1 D;k oknh QeZ dh oknh dh vksj ls izfroknhds ;gka fnukad 27&9&67 dks 4000 pkj gtkj :i;k tek djk;kvkSj izfroknh us bl ckcr jlhn oknh dks nh

2 D;k oknh bl jde ij C;kt 1 :i;k lsdM+kekfld ls ikus dk vf/kdkjh gS

3 D;k jlhn fy[kre okn vk/kkj mfpr LVkEi iju gksus ds dkj.k U;k;ky; esa lk{; xzkg; ugha gS

4 D;k fo?kfVr QeZ ,oe mlds fo:) fM- tt-Xokfy;j ds le{k izdj.k ekad [email protected] fnokfy;k ,oe izFke vfr- fM- tt- ds ;gkaizdj.k ekad [email protected] fnokfy;k fopkjk/khu gksus ls bl izdj.k dh dk;Zokgh LFkfxrfd;s tkus ;ksX; gS

5 ;gfd leLr Hkkxhnkjksa dks i{kdkj ughacuk;k x;k gS vr% nkos esa vlekos'k izfroknh x.k dh =qfV gS

6 D;k oknh lkgwdkj gS vkSj mlus lkgwdkjhfo/kkuksa ds vUrjxr [kqn dks jft- ugha djk;k gS vkSj mDr fo/kku ds fu;eksa dkikyu ugha fd;k bldk izHkko

7 lgk;rk ,oe O;;

It is obvious enough that issues 1 & 2 relate to the merits of the suit. Issue No. 3 is about the admissibility of the receipt on the basis of which the suit deposit was made. The objection was that it did not bear proper and adequate stamps. This point can certainly be raised and decided when the receipt is produced in evidence.

3. When the issues were framed the trial Court in its order dated July 6, 1971 stated that issues 3 to 5 are legal issues and should be tried as preliminary issues. I suppose the Court meant to say issues 4 to 6 and not 3 to 5, because as would be pointed out just now issue No. 6 is undoubtedly a preliminary issue. The trial Court fixed July 20, 1971 for hearing argument on the preliminary issues.

4. The case could not be taken up on the 20th July or 22nd July or the 3rd August. When it was taken up on August 10, 1971, learned counsel for the defendants asked for an opportunity to produce evidence on those issues. This was opposed by the learned counsel for the plaintiffs. They contended that evidence should be recorded on all the issues together. On this, the learned trial Judge passed the following order:--

eSa og mfpr le>rk gw fd lHkh okn i= fy;s tk;&&

(I consider it proper to record evidence on all the issues).

He then fixed October 21, 1971 for evidence of the parties on all the issues. The defendants are aggrieved by this order.

5. It will be seen from the impugned order that the learned trial Judge did not give any reason for the order which he made. This was particularly necessary when in the earlier order he had called them 'legal issues' and held that they should be tried as 'preliminary issues'. The trial Court did not say in the impugned order that on a reconsideration, it did not consider them to be preliminary issues. It did not apply its mind how the trial of the suit would be affected if any of the issues were decided by it at the conclusion of the trial in favour of the defendants. It must be said that the impugned order was mechanically arbitrarily passed. It is anything but a judicial order.

6. Issue Number 6 arisesfrom the following objectiontaken in the written statement:--

^^;g fd oknhx.k us vius dks e/;izns'k euhys.Mj,DV ds vUrxZr jftLVMZ ugha djk;k gSA muds ikl mDr fo/kku ds vuqdwy dksbZ osfyMlfVZfQdsV Hkh ugha gSA vr% oknhx.k us mDr fo/kku ds fu;eksa dk ikyu ugha fd;kgSA vr% mudk okn U;k;ky; esa fopkj ;ksX; ugha gSaA**

The objection is that the suit is not maintainable. Whether this objection is right or wrong is not for me to consider today. If the objection is right and the Court holds that the suit is not maintainable, the whole trial will be futile. The objection goes to the root of the case and is undoubtedly a question of jurisdiction of the Court to try the suit. The objection is that the suit for want of a certificate is not maintainable. This issue has necessarily to be decided as a preliminary issue because the trial of the suit cannot proceed unless the Court holds that the suit is maintainable. Under issue No. 4 the Court had to decide whether the suit must be staved pending the decision of the insolvency proceedings which are pending. This objection may be right or wrong. It is not to be considered by me today. This, was to be tried by the trial Court as a preliminary issue. Learned Counsel for the plaintiffs tries to argue that as there has been no order of adjudication. The trial Court should have decided issue No. 4 against the plaintiff if found the plaintiffs to be right in their contention. What I say is that issue No. 4 is undoubtedly a preliminary issue. Decision on this issue cannot be postponed till the decision of the entire suit.

7. Issue No. 5 is about defendant's objection as to non-joinder of necessary parties. Paragraph 14 of the written statement is in these words:--

^^;g fd Hkkxhnkjksa dks i{kdkj ugha cuk;k x;kgS tks fd izdj.k esa vko';d i{kdkj gSA izdj.k cukus tksbUMj vkQ uslsljh ikVhZ dknks'k gSA bl dkj.k oknh dk okn fujLr fd;s tkus ;ksX; gSA**

Also see paragraph 2 of the written statement. Now the question whether the suit suffers from non-joinder of necessary parties can certainly not be postponed because if in the final judgment it is held that the objection of the defendants is right then the plaintiffs will have to be given an opportunity to join those persons who have been left out and then the entire trial would necessarily be reopened. This again would mean unnecessary harassment and expense to the parties.

8. The above discussion leads to the only result that the trial Court was bound to decide issues 4, 5 and 6 as preliminary issues before trying the suit on merits. In the present case when on August 10, 1961 the defendants wanted time to produce evidence on these issues, the trial Court had to exercise its discretion judicially and either to allow the request or reject it. But the trial Court did not say either that the evidence was not necessary, nor that the defendants had no right to produce evidence. In fact, by the impugned order the learned trial Judge accepted the defendant's request to produce evidence although it directed that evidence on these issues would also be produced along with the evidence on the other issues.

9. In support of his contention learned counsel for the petitioners has cited before me a large number of decided cases, some of which may be mentioned here. They are: S.S. Khanna v. F.J. Dillon AIR 1964 SC 497 Pannalal v. Ram Ratan, 1965 Jab LJ (SN) 74, Gvarsilal v. State of M. P. 1967 MPLJ (SN) 57. Tharpal v. Govindram, 1962 Jab LJ 403 and Santoshchandra v. Smt. Gyansundarbai, 1970 MP LJ 363 = (AIR 1971 Madh Pra 1 (FB).

10. I find myself bound by these decisions, not only of the Full Bench and the Division Bench, but also of the two Single Bench decisions of Mr. Justice Pande. A judge sitting singly cannot dissent from a decision of another Single Judge. The only course open to him is to refer the matter to a larger Bench. See Bhagwan v. Ramchand AIR 1965 SC 1767 where their Lordships have laid down as follows--

'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single judge but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question.'

In fact, I myself, during the course of the hearing became inclined to refer the matter to a larger Bench because Shri G.G. Mangal, learned counsel for the respondents produced before me the decision of a learned Single Judge in Civil Revn. No. 322 of 1971 (Madh. Pra.). In that case it has been held on rather similar facts and in similar circumstances, that issues relating to the stay of the suit because of insolvency proceedings and the issue relating to the plaintiff being a money-lender are not preliminary issues and it was not necessary to decide them as such. I do not know in what words and in what form the defendant took objection in that case as to the maintainability of the suit and also regarding the stay of the suit. If the objections in the written statement were in the words that I have quoted above his Lordship's attention to them ought to have been invited by the learned counsel for the defendants, who appeared in that case. I was bound to follow the order passed by the learned Single Judge or to refer this case to a larger Bench on that particular point. If I did not have before me the full Bench decision in 1970 MPLJ 363 = (AIR 1971 Madh Pra 1 FB) (supra) where it has been laid down as follows:--

'Where questions of court-fee, limitation and untenability of the suit are raised in a suit it is always desirable to try them as preliminary issues and not postpone them to the stage of the final judgment.'

Or the Division Bench decision of Mr. Justice Krishnan and Mr. Justice Bhargava in 1962 Jab LJ 403 where it is observed as under:--

'Whether or not a trial Court should dispose of a suit on a preliminary issue is a matter of convenience and not of principles. Still it is important as it involves public time and money of the litigants. Usually when a Court finds that the consideration of a single issue can lead to the complete disposal of the suit or other proceedings it can be dealt with as a preliminary point without touching other issues or without recording evidence on them.'

In view of these binding principles which apply to the present case. I cannot refer the matter to a larger Bench unless I found myself unable to follow those decisions. I respectfully agree with that view.

11. Learned counsel for the respondents strenuously argued that in the present case the objection raised by the defendants as to the maintainability of the suit, non-joinder of parties and stay of suit are frivolous and are aimed at protracting the trial. He may be right or may not be right. The very nature of issues 4, 5 and 6 demands that they must be decided as preliminary issues.

12. This revision is allowed. The order of the trial Court dated August 10. 1971 is set aside. The case shall 20 back to the trial Court for first deciding issues 4, 5 and 6 as preliminary issues. I found that in the trial Court December 14, 1971 is fixed. The parties shall appear on that date and shall produce all evidence that they want to produce. No adjournment will be granted to the defendants. I leave it to the trial Court to deal with issue No. 3 as a preliminary issue because it is contended before me by Shri Mansal that that issue no more survives in view of the fact that the receipt has already been admitted in evidence, and Section 36 of the Stamp Act will not now come in the way. I direct that the parties shall bear their own costs of this revision.


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