Skip to content


Nitco Roadways Pvt. Ltd. Vs. the National Insurance Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 785 of 1983
Judge
Reported in27(1985)DLT444
ActsCode of Civil Procedure (CPC), 1908 - Order 14, Rule 2
AppellantNitco Roadways Pvt. Ltd.
RespondentThe National Insurance Co. and ors.
Advocates: K.R. Gupta and; Arun Kumar, Advs
Cases Referred and Kanailal Mitra v. Pannassashi Mitra
Excerpt:
.....of any contract of carriage. this piecemeal trial of issues has not done any good to anybody. the issue regarding accident or the act of good cannot be tried as preliminary..........of amending the rule is to avoid trial of suits piecemeal, repeated appeals and remand of the suit to trial court where the appellate court disagrees with the verdict of the trial court on preliminary issue. (12) i, thereforee, order that the roadways will be allowed to give evidence on all the issues. issue nos. 2 and 3 will not be treated as preliminary issues. the court will pronounce judgment on all the issues. (13) for these reasons the revision petition is allowed. the impugned order dated 20-8-83 is set aside. the parties are directed to appear in the court of shrip.k. bahri, additional district judge, delhi on 11-2-85. the office will send down the record immediately. the parties will bear their own costs in revision. (14) i make it clear that i have not decided the defense.....
Judgment:

Avadh Behari Rohatgi, J.

(1) This revision petition raises a point of procedure in the trial of suits. Weston Electronics Limited sent from Delhi 60 boxes of T.V. sets to Calcutta. The consignment was accepted by Nitco Roadways Pvt. Ltd. petitioner herein, for carriage for reward. On way the goods were damaged. The consignor recovered the value of. the goods from National Insurance Company Limited with whom they were insured. On subrogation the National Insurance Company Ltd. brought the suit against Nitco Roadways for the recovery of Rs. 85.00U.00 . The Roadways were sought to be made liable as carriers of goods. The Roadways pleaded that near Varanashi on 13-3-1980 the tyre of the truck burst and as a result there was a serious accident causing injury to the driver and damage to the goods. This accident, it was said, 'was beyond the control and not due to any negligence or carelessness on the part of the driver of the truck.'

(2) On this plea of the Roadways, the following two preliminary issues were raised:

'(2)Whether the plea of defendant that the accident had occurred beyond the control of defendant No. I and thus not liable to pay the damages is entertainable in law Opd (3) If issue No. 2 is held in favor of the defendant whether accident took place beyond the control of defendant

(3) The trial judge treated them as preliminary issues. On these issues he returned the finding that the plea of Roadways that the damage occurred on account of accident over which they had no control as the tyre of the truck had burst 'is not entertainable in law because such an accident is not due to any act of God.' So he decided the first of the above issues against the Roadways and the other issue he ordered to be deleted. On the remaining issues framed by him regarding verification of plaint, quantum of damages and service of notice under section 10 of the Carriers Act he set down the case for evidence. From this order the Roadways have come in revision.

(4) The chief argument of counsel for the Roadways is that without taking any evidence the learned judge has decided the issue against the Roadways and that this procedure is not sanctioned by law. In my opinion he is quite right. It is well-settled rule that in appealable cases all issues arising in the suit should ordinarily be tried together and decided. Where all the issues are issues of fact, the court has no power to try only some of them and postpone the trial of others. (See Bhikhabhai v. Vali Isa Patel, : AIR1964Guj101 and Haridas v. Vijayalakshmi, : AIR1956Bom721 ).

(5) Rule 2 of Order Xiv, Code of Civil Procedure says :

'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.'

(6) Now the defense of act of God raises a question of fact. 'Whether a particular occurrence amounts to an act of God is a question of fact,' (Winfield and Jolowicz on tort, 12th ed. p. 444. The term 'Act of God' is appropriate where liability is sought to the imposed upon a person hwo, by reason of his calling or otherwise, such as that of a common carrier, has assumed an absolute liability to see that the plaintiff's property is left free from harm. Such absolute liability is subject to an exception in respect of damage caused by an act of God, which would ordinarily be defined as such an operation of the forces of nature as reasonable foresight and ability could not foresee or reasonably provide against. (Baldwin's Ltd. v. Halifax Corpn. (1916) 85L.J.K..B. 1769 per Atkin J.at p. 1774). It must, however, be something overwhelming and not merely an ordinary accidental circumstance, and it must not arise from the act of man. (.8 Halsbury's Laws (3rd ed, 183. On common carrier's liability as insurer Halsbury says :

'SUBJECT to the statutory limitations hereinafter mentioned, a common carrier is absolutely responsible for the safety of goods entrusted to him for carriage save where loss or damage results from (.1) an act of God, (2) an act of the Queen's enemies, (3) the fault of consignor, or (4) inherent vice in the goods themselves. Thus, he is an insurer of the safety of the goods against every extraneous risk save act of God or the Queen's enemies. He is liable even when overwhelmed and robbed. This responsibility is imposed upon a common carrier by law, so the failure to deliver safely is a breach of duty independent of any contract of carriage. Where there has been a breach of duty on his part, such as an unjustifiable deviation, he may be liable for loss or damage even though it results from an act of God or of the Queen's enemies. Where, however, there is a contract, liability may arise either at common law or under the contract, and the contract may limit the carrier's responsibility.'

(5 Halsbury's Laws (4th ed.) p. 156, 157).

(7) Before the insertion of new rule 2 in 0. Xiv by the Amendment Act of 1976 it was only on a question of law that a preliminary issue could be framed. If the decision of the preliminary issue depended on the decision of a question of fact, no such preliminary issue could be framed S.S. Khanna v. F.J. Dillon, : [1964]4SCR409 ). If a decision on a question of law depended upon a question of fact the question of fact had to be decided first in order to avoid the necessity of an order of remand in case the appellate or the revisional Court disagreed with the proposition of law decided by the lower court.(See Fazlehussein v. Yasufall v, : AIR1955Bom55 and Kanailal Mitra v. Pannassashi Mitra, : AIR1954Cal588 ).

(8) Now see what has happened in this case. The learned judge decided an issue of fact assuming the allegations of the Roadways to be correct. The issue has been decided against the Roadways. This piecemeal trial of issues has not done any good to anybody. The suit has been delayed. If the learned judge had taken evidence on all the issues then a remand would have been obviated. The issue regarding accident or the act of Good cannot be tried as preliminary issue. This will require evidence. So what the judge should have done is that he should have taken evidence on all the issues which the parties wanted to adduce before him and should have then decided the case. From the earliest time the Privy Council and the Supreme Court have deprecated this practice of treating some issues as preliminary issues and have always insisted that in appealable cases, the court should as far a possible decide on all the issues joined, inasmuch as a piecemeal trial might lead to protracted litigation and repeated appeals in the same suit. (S S. Khanna v F.J. Dillon (supra). The great draw-back of this method of trial is that in case the appellate or the revisional court disagrees with the trial court, the suit has to go back and then there is considerable delay in the disposal of the suit. But if the court pronounces judgment on all the issues then a remand is avoided.

(9) The new rule 2 inserted by the Amendment Act 1976 has made a significant change in the trial of suits so far as preliminary issues are concerned. It is no longer mandatory for the court to try issues of law first and to postpone the settlement of issues of fact until after the issues of law had been determined, as could be done under the old rule. Under the amended rule there is a mandate to the court to pronounce judgment on all the issues notwithstanding that a case may be disposed of on a preliminary issue. The only exception is that contained in sub-rule (2). Sub-rule (2) provides that issue of law to be tried as a preliminary issue must relate to the jurisdiction of the court or to a bar to the suit created by law for the time being in force. It is only then that the issue can be tried as a preliminary issue. Otherwise its being merely an issue of law is not sufficient for ifs trial as a preliminary issue. It is to be tried along with other issues under sub-rule (1).

(10) The learned judge has gone on the assumption that even if there was a tyre burst, as alleged by the Roadways, this will not in law constitute an act of God. This is in substance what he says. But this approach is entirely erroneous. It is always a question of fact whether such and such occurrence was an act of God. It is only in cases where it is alleged that the plaint does not disclose a cause of action that it is open to the judge to accept all the allegations in the plaint as true and then to decide whether on the facts as alleged the plaintiff has a cause of action in law. This of course is a preliminary issue. Because if the plaint does not disclose a cause of action no other question will arise. That will be the end of the suit. The plaint will have to be rejected under 0. 7 R. 11, Civil Procedure Code .

(11) The amended Rule 2 of 0. Xiv, Civil Procedure Code . thus makes a departure from the rule as it stood before amendment in three important respects : (1) that though the case may be capable of being disposed on a preliminary issue, the court is given a mandate to try all the issues together ; (ii) that an exception is made to this mandate by giving discretion to try an issue as to jurisdiction or a statutory bar to the suit as a preliminary issue and for that purpose postpone the settlement of the rest of the issues : and (iii) that in a given case the court may decline to try even an issue relating to its jurisdiction or to a statutory bar to the suit as a preliminary issue if it considers expedient to do so. The object of amending the rule is to avoid trial of suits piecemeal, repeated appeals and remand of the suit to trial court where the appellate court disagrees with the verdict of the trial court on preliminary issue.

(12) I, thereforee, order that the Roadways will be allowed to give evidence on all the issues. Issue Nos. 2 and 3 will not be treated as preliminary issues. The court will pronounce judgment on all the issues.

(13) For these reasons the revision petition is allowed. The impugned order dated 20-8-83 is set aside. The parties are directed to appear in the court of ShriP.K. Bahri, Additional District Judge, Delhi on 11-2-85. The office will send down the record immediately. The parties will bear their own costs in revision.

(14) I make it clear that I have not decided the defense of the act of God on merits. I am on the procedure, and not on the merits of the defense of accident or act of God. Whether the plea raised by the roadways amounts to an act of God or not is a question to be decided after taking evidence, such evidence as the Roadways might wish to give. If the Roadways want to amend the written statement, they may make an application to the learned judge which he will decide according to law.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //