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Sayyed Shah Abdul Latif Mohideen Khadiri Sujjatha Shibathullahi Sahib Vs. Mohammad Labbai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 71 of 1949
Judge
Reported inAIR1950Mad596
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92 and 115 - Order 14, Rule 2
AppellantSayyed Shah Abdul Latif Mohideen Khadiri Sujjatha Shibathullahi Sahib
RespondentMohammad Labbai and ors.
Appellant AdvocateS. Ramachandra Iyer, Adv.
Respondent AdvocateV. Ramaswami Iyer ; and V. Meenakshisudaram, Advs.
DispositionPetition dismissed
Cases ReferredRangaswami Chetti v. Munisami Chetti
Excerpt:
.....the suit was filed with the sanction of the advocate-general endorsed on the plaint, for removing defendant 1 from his trusteeship and the possession and management of the trust properties, for framing a scheme suitable for the administration of the public trust and for ancillary reliefs with which we are not now concerned. there is a circular issued by this court that as a generalrule, in appealable cases subordinate courts ought not to decide a suit solely on preliminary issues but should record their findings on the merits as well after taking evidence. 4. if i were clearly of opinion that there is no valid sanction for the suit granted by the advocate-general, i would direct the court below to deal with issue 13 as a preliminary issue. all that he has to be satisfied about before..........as preliminary issues and disposed of before the other issues were taken up for consideration. the learned subordinate judge, by his order dated 6th december 1948, dismissed the application for reasons which may be stated in his own words:'under rule 61 of the civil rules of practice, the trial court ought not to dispose of a suit on preliminary issues but should record findings on all the issues. i am not, therefore, prepared to try issues 8, 9 and 13 as preliminary issues and dispose of the suit. the case will be tried on all the issues.' what is referred to by the learned subordinate judge is not a rule framed by this court under the rule-making power but only a circular issued for the guidance of subordinate courts. 2. the issues which defendant 1 wanted to be tried as preliminary.....
Judgment:
ORDER

Viswanatha Sastri, J.

1. Defendant 1 in O. S. No. 26 of 1948 on the file of the Court of the Subordinate Judge of Tirunelveli is the petitioner in this civil revision petition. The suit was brought by five worshippers at a public mosque called the Mohideen Andavar Pallivasal in the village of Pottalpudu as representing all the worshipping public of the locality interested in the mosque and in its proper administration. The defendants are five in number. Defendant 1 is stated to be the trustee of the endowment and defendants 2 to 5 have been impleaded as persons who might have a possible right of succession to the trusteeship after defendant 1. The suit was filed with the sanction of the Advocate-General endorsed on the plaint, for removing defendant 1 from his trusteeship and the possession and management of the trust properties, for framing a scheme suitable for the administration of the public trust and for ancillary reliefs with which we are not now concerned. The suit was filed on 1st March 1948. After the filing of the written statements, as many as 14 issues have been framed in the case on the contentions raised by the parties. The suit has not yet been tried. On 4th November 1948, defendant 1 filed an application under Order 14, Rule 2, Civil P. C., praying that issues 8, 9 and 13 should be tried as preliminary issues and disposed of before the other issues were taken up for consideration. The learned Subordinate Judge, by his order dated 6th December 1948, dismissed the application for reasons which may be stated in his own words:

'Under Rule 61 of the Civil Rules of Practice, the trial Court ought not to dispose of a suit on preliminary issues but should record findings on all the issues. I am not, therefore, prepared to try issues 8, 9 and 13 as preliminary issues and dispose of the suit. The case will be tried on all the issues.' What is referred to by the learned Subordinate Judge is not a rule framed by this Court under the rule-making power but only a circular issued for the guidance of subordinate Courts.

2. The issues which defendant 1 wanted to be tried as preliminary issues are these :

'Issue 8.--Is the court-fee paid inadequate ?

Issue 9.--Are defendants 2 to 5 necessary parties to the suit ?

Issue 13.--Is the suit as framed for any of the reliefs claimed therein not maintainable for want of a valid sanction of the Advocate-General ?'

Mr. S. Ramachandra Iyer who confined his arguments with reference to issue 13 states that there is no valid sanction granted by the Advocate-General for the institution of the suit and this defect, which is fundamental, would appear from a perusal of the order according sanction for the suit passed by the learned Advocate-General. He further contends that a valid sanction of the Advocate-General to the suit is the foundation of the jurisdiction of the Court to try the suit under Section 92, Civil P. C., and in this case the trial on the other issues would have been futile and without jurisdiction, in case his contention that the suit is bad for want of a proper sanction of the Advocate-General is well-founded. I agree that the note to Rule 61 of the Civil Rules of Practice referred to by the learned Subordinate Judge does not override the provisions of Order 14, Rule 2, Civil P. C., but not with the further contention that the learned Judge acted illegally and with material irregularity in rejecting the application of defendant 1 for a preliminary trial on issues 8, 9 and 13.

3. If the decision of a preliminary issue is governed by a clear and specific statutory provision whose interpretation does not admit of any possible doubt, or by a binding decision of the highest Court on that very matter, then it is not improper for a Court to try the preliminary issue before entering upon the merits of the dispute between the parties. There is a circular issued by this Court that as a generalrule, in appealable cases subordinate Courts ought not to decide a suit solely on preliminary issues but should record their findings on the merits as well after taking evidence. Under Order 14, Rule 2, Civil P. C., 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. In this case, however, the issues of fact, have already been settled and the suit itself, both on the issues of fact and of law, is ripe for trial.

4. If I were clearly of opinion that there is no valid sanction for the suit granted by the Advocate-General, I would direct the Court below to deal with issue 13 as a preliminary issue. The Advocate-General has pronounced an order setting forth the reasons for the grant of sanction for the institution of the suit. From the order it appears that his mind had been oscillating during the course of the enquiry, but eventually it settled in favour of granting sanction for the suit in respect of the reliefs prayed for including the reliefs by way of framing of a scheme and removal of defendant 1 from the trusteeship. From the order of the Advocate-General, it appears that defendant 1 was stated to have alienated trust properties treating them as his own, that the alienations were not for purposes binding on the trust, and that there were also other minor charges which the Advocate-General did not investigate. In other words, the Advocate-General did not think that the prayer for the removal of the trustee should be excised from the plaint and the rest of the reliefs alone should receive his sanction. In any case it is not the function of the Advocate-General to give a decision on the issues that might arise in the course of a suit under Section 92 and the Court is free to come to its own conclusions of fact and law. All that he has to be satisfied about before granting a sanction is that there is a prima facie case, and that it is worth while that the suit should be tried by a Court in the interests of a public charitable trust.

5. A decision of a Bench of this Court in Rangaswami Chetti v. Munisami Chetti (O. S. A. no. 72 of 1923) decided by Courts-Trotter C. J. and Srinivasa Ayyangar J. has been cited before me by Mr. Ramachandra Aiyar, the learned advocate for the petitioner. I am unable to see how this case at all helps him. The learned Judges held that in that case the order of the Advocate-General read along with the reasons given by him for the grant of sanction, was ambiguous and that it was possible toconstrue the order granting sanction as refusing, by implication, certain parts of the reliefs prayed for by the plaintiffs. I have not got before me the terms in which the sanction of the Advocate-General was granted in that case, and I have no reason to think that the criticism of the sanction by the learned Judges was not justified. But with great respect to the learned Judges, I consider that they had no power to remand the case to the Advocate-General with a direction that he should specify which of the reliefs sought for in the suit be sanctioned and which he desired to exclude. There is no power in the Code of Civil Procedure or in any other provision of law that I am acquainted with, empowering this Court to remit an application for sanction on which an order has been passed by an officer who is not a Court, for his reconsideration in the light of the judgment of this Court. Neither the Collector nor the Advocate-General granting sanction under Section 92, Civil P. C., is acting as a Court, or as a Court subordinate to this Court. If there was no valid sanction, the suit should have been dismissed on that ground. There is no question of rectification. I am, however, unable to say that it is clear on the face of the order of the Advocate-General in this case that the sanction is bad. I am not at the same time expressing a final opinion so as to prejudice the decision of issue 13 by the Court below.

6. Under Order 14, Rule 2, Civil P. C., the Court has a discretion as to the order in which it should try the issues arising in the case and the power to dispose of the issues in the way which it considers to be most conducive to the rendering of justice. It has often been observed by this Court and by the Judicial Committee that in appealable cases, subordinate Courts should, as far as possible, receive the evidence adduced and decide all the issues. In order to avoid a piecemeal trial and a protracted litigation in the shape of an appeal and remand in case the decision of the subordinate Court on preliminary issues is not upheld by the appellate Court. If I felt that the issues of law raised in this case went to the root of the case and admitted of an obvious answer I might, if I were sitting as a trial Judge, in my discretion, try the issues of law. Having considered the pleadings in the case, I bold that the learned Subordinate Judge was right in refusing the application of defendant 1 and I am of the opinion that the suit should foe tried on its merits and also on the issues suggested by the learned advocate for the petitioner and a final and complete judgment rendered. For these reasons, I dismiss this civil revision petition with costs.


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