Skip to content


Thiruvambadi Rubber Co. Ltd. Vs. N.K. Damodaran Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2596 of 1983-B
Judge
Reported inAIR1984Ker191
ActsCode of Civil Procedure (CPC) , 1908 - Order 14, Rule 2(2)
AppellantThiruvambadi Rubber Co. Ltd.
RespondentN.K. Damodaran Nair and ors.
Appellant Advocate T.L. Viswanatha Ayyar and; N. Subramoniam, Advs.
Respondent Advocate C.P. Sudhakara Prasad and; Babu Mathew P. Joseph, Advs.
DispositionRevision dismissed
Cases ReferredRamdayal Umraomal v. Pannalal Jagan
Excerpt:
.....any law for time being in force can be tried preliminarily postponing settlement of other issues. - - but under sub-rule (2) of rule 2, order 14, the court is entitled to dispose of the suit on a preliminary issue provided all the requirements stated therein are satisfied......case, it is necessary to decide the factual controversy before arriving at a conclusion on that issue. issue no. 3 is essentially an issue of law which ousts the jurisdiction of the civil court by virtue of the provisions in section 125 of the kerala land reforms act. therefore in a suit where a question whether a party is a tenant or not under the k.l.r. act arises for consideration, the civil court has no jurisdiction to try that issue; it is bound to refer the matter to the competent land tribunal. issue no. 3, therefore, squarely falls under clause (b) of sub-rule (2) of rule 2 of order 14. there is no dispute between the parties on issue no. 6 that it should be tried as a preliminary issue. now let us examine whether the order of the court below refusing the prayer of the.....
Judgment:
ORDER

S.K. Kader, J.

1. Thiruvampadi Rubber Co. Ltd., the defendant in O. S. 569 of 1982 on the file of the Munsiff, Kozhikode-II, is the revision petitioner and the revision is directed against an order passed by that court on I. A. 3750 of 1983 refusing the request made therein to hear issues Nos. 1, 4, 5 and 6 before hearing and deciding issue No. 3. The said application was filed under Order 14, Rules 1 and 2 of the Civil P. C.

2. The respondents herein instituted the above said suit against the revision petitioner for recovery of possession of the plaint schedule property on the ground that the period of the registered lease deed had expired. The revision petitioner resisted the suit filing a written statement mainly contending that he had sent the necessary premium of Rupees 693.75 before the expiry of the initial period of 36 years as stipulated In the lease deed, which was refused by the respondents herein, that by tendering the premium in time by virtue of the relevant clause the lease deed in question stood automatically renewed for another 36 years, that the suit is therefore premature, that the revision petitioner is entitled to fixity of tenure under the Kerala Land Reforms Act, that the court-fee paid is not correct and that the revision petitioner is entitled to value of improvements.

3. After hearing both sides and considering the pleadings in the suit, 7 issues were framed by the trial court They are :

'1. Whether the period of lease has expired in spite of the prescribed premium amount having been remitted for automatic renewal?

2. Whether the alleged termination of the lease is true and valid?

3. Whether the lease is an agricultural tenancy having fixity of tenure under the tenancy laws, if so, is the claim for eviction sustainable?

4. Is the suit premature?

5. Whether the defendant is entitled to value of improvements?

6. Whether the suit is properly valued and correct court-fee paid? and

7. Relief and cost.'

4. The learned Munsiff after hearing both sides rejected the prayer of the revision petitioner holding that issue No. 3 cannot be postponed till issues Nos. 1, 4 and 5 are heard and disposed of.

5. Attacking this order, the learned advocate appearing for the petitioner strongly contended that the court below seriously erred in holding that on a preliminary issue arising for consideration under Order 14, Rule 2, no evidence can be recorded and that issues Nos. 1, 4 and 5 do not involve any question of law. According to the counsel, issues Nos. 1 and 4 are the most important issues in this case as they affect the jurisdiction of the court to entertain the suit and therefore these issues ought to have been tried as a preliminary issue before trying issue No. 3. Relying on a decision in M. L. Sethi v. R. P. Kapur (AIR 1972 SC 2379), the learned counsel submitted that wider meaning has been given to the word 'jurisdiction' and that the word jurisdiction has a verbal caste of many colours.

6. The question for consideration in this revision is whether by virtue of the provisions in Order 14, Rule 2, the revision petitioner is entitled to have issues Nos. 1, 4 and 5 heard and disposed of before issue No. 3 is taken up for consideration.

It is seen that the issues in the suit were framed as early as on 22nd March, 1983. Thereafter, the suit was posted for hearing on issues Nos. 3 and 6 and it was at that time I. A. No. 3750 of 1983 was filed by the revision petitioner under Order 14, Rule 2. Order 14, Rule 2 of the Code of Civil Procedure reads :

'14. (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.'

The general rule is that the court shall try all the issues and pronounce the judgment on all issues. But under Sub-rule (2) of Rule 2, Order 14, the court is entitled to dispose of the suit on a preliminary issue provided all the requirements stated therein are satisfied. From Sub-rule (2), it is clear that it is only an issue of law going to the very root of the matter affecting the jurisdiction or an issue which creates a bar to the suit by any law for the time being in force, that can be tried preliminarily postponing the settlement of other issues.

7. Issues 1 and 4 relate to the same matter. Under the first issue, it is contended by the revision petitioner that the lease has been automatically renewed by virtue of Clause (8) of the lease deed by tendering the premium and therefore by renewal he got another period of 36 years to be in possession of the property. In other words, the contention is that the suit is not maintainable as the period of lease has not expired. The very same point is raised on issue No. 4 by contending that the suit is premature. The counsel contended that these 2 issues relate to the entertainability of the suit and as such to the jurisdiction and therefore these issues have to be justifiably tried as a preliminary issue under Order 14, Rule 2 (2). The very suit is based on the strength of the lease deed in question which was for a period of 36 years. The respondents allege that this lease deed got terminated due to efflux of time and there has been no renewal or payment of premium as stipulated in the lease deed. These issues are not purely questions of law but only mixed questions of law and fact although they relate to the entertainability or maintainability of the suit. These issues involving mixed questions of law and fact, cannot be decided in accordance with law without recording evidence. The suit itself is based on the lease deed in question the execution of which is admitted. The dispute between the parties is whether this lease has expired by efflux of time on the expiry of the period of 36 years or whether it has been renewed automatically in accordance with the provisions in Clause (8) of the lease deed. This is the sole or rather the main issue to be tried in the suit and in the nature of the contentions, evidence will have necessarily to be let in to come to a conclusion either way on these issues. Almost all the entire evidence required to be adduced in the suit, will have to be adduced while trying these issues. The object of the amendment of Rule 2 by introducing Sub-rules (1) and (2) by Act 104 of 1976 was to prevent as far possible piecemeal trial or lopsided trial which will be injurious to the litigants.

8. It was argued by the learned advocate appearing for the revision petitioner that even in support of a preliminary issue arising under Rule 2, Order 14, the Court is entitled to take evidence oral and documentary and the trial Court committed a serious error of law affecting the jurisdiction by taking the view that on a preliminary issue arising under Rule 2, Order 14, no evidence can be recorded.

9. The provisions in Sub-rule (2) of Rule 2, Order 14, confer jurisdiction to try only an issue of law as a preliminary issue, provided that issue related to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. The word 'Jurisdiction' has in due course acquired a wider meaning and is a verbal caste of many colours. As rightly contended by the counsel for the revision petitioner, there may be inherent lack of jurisdiction, territorial jurisdiction, pecuniary jurisdiction or a suit may be barred by reg judicata or limitation. All these are cases where lack of jurisdiction depends either on purely question of law or mixed question of fact and law. In other words, there maybe lack of jurisdiction on account of factual allegations and there may be inherent lack of jurisdiction. In the latter case, the issue is one of law; while in the former case, it is necessary to decide the factual controversy before arriving at a conclusion on that issue. Issue No. 3 is essentially an issue of law which ousts the jurisdiction of the civil Court by virtue of the provisions in Section 125 of the Kerala Land Reforms Act. Therefore in a suit where a question whether a party is a tenant or not under the K.L.R. Act arises for consideration, the civil Court has no jurisdiction to try that issue; it is bound to refer the matter to the competent Land Tribunal. Issue No. 3, therefore, squarely falls under Clause (b) of Sub-rule (2) of Rule 2 of Order 14. There is no dispute between the parties on Issue No. 6 that it should be tried as a preliminary issue. Now let us examine whether the order of the court below refusing the prayer of the revision petitioner to try Issues Nos. 1, 4 and 5 as preliminary issues before trying issue No. 3 is vitiated by any error of law and liable to be interfered with in exercise of the revisional jurisdiction. There is no error of law committed by the Court below and the counsel for the revision petitioner was also not able to convince the Court that the order under attack is in any way vitiated, compelling exercise of the revisional jurisdiction of this Court. Therefore there is nothing wrong in the view taken by the Court below that issue No. 3 cannot be postponed till issues Nos. 1, 4 and 5 are enquired, into treating issue No, 3 alone as a preliminary issue for the purpose of enquiry, under Sub-rule (2) of Rule 2 of Order 14. On a careful and fait construction of Rule 2 of Order 14, it is clear that only an issue raising a pure question of law, falling either under Clause (a) or (b) of Sub-rule (2) of Rule 2 of Order 14, Where evidence is not necessarily to be recorded that can be tried as a preliminary issue. In other words, the questions of mixed fact and law where evidence is necessarily to be recorded, need not be tried as a preliminary issue coming under this rule. There is the authoritative pronouncement of the Supreme Court in this regard in S. S. Khanna v. F. J. Dillon (AIR 1964 SC 497) where it was observed that Civil P. C. confers no Jurisdiction upon the Court to try a suit on mixed issues oflaw and fact as preliminary issues and that 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 lopsided trial of the suit. In Estrela Batteries v. Modi Industries (AIR 1976 All 201), it was held that in a case where a preliminary issue as to jurisdiction of the Court to entertain the suit raised is not a pure question of law but is one involving mixed question of law and fact, the finding of the trial Court that such issue cannot be decided as preliminary issue under Order 14, Rule 2 is not vitiated by any error within Section 115 of the Civil P. C. In Sorojini Rath v. Bhaskar Rath (AIR 1977 Orissa 42), it was held that the Subordinate Judge took the correct view in refusing to try the issue regarding res judicata as a preliminary issue. In Mahabir v. Babu Lal (AIR 1971 Pat 313), it was observed that where issues of law going to the root of the case and capable of being decided without evidence arise, the Court is bound to try them first. A Full Bench of the Madhya Pradesh High Court (Indore Bench) considered the scope and effect of Rule 2 of Order 14 in Ramdayal Umraomal v. Pannalal Jagan-nathji, (AIR 1979 Madh Pra 153 (FB)). It was held by the Full Bench after reviewing the entire case law on the point that under Order 14, Rule 2 of the Civil P. C., an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. It is, therefore, clear that it is only an issue of law which goes to the root of the suit and capable of being decided without recording evidence that must be tried as a preliminary issue in the first instance under Rule 2, Order 14 of the Civil P. C.

In the instant case, as already stated, the issues 1, 4 and 5 necessarily require recording of evidence to arrive at a conclusion thereon. The revision petitioner has no case that these issues can be decided without recording or adducing any evidence. On the facts and in the light of the decision of the Supreme Court and the principles stated in the decision of the various other High Courts, referred to above, this revisionhas no merit and the same is hereby dismissed. No costs.

Issue carbon copy of this order to the counsel for the revision petitioner on the usual terms.


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