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Mahabir Prosad Lilha Vs. Biswanath Kothari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 173 of 1978
Judge
Reported inAIR1981Cal51,85CWN225
ActsCode of Civil Procedure (CPC) , 1908 - Order 14, Rule 2
AppellantMahabir Prosad Lilha
RespondentBiswanath Kothari and ors.
Appellant AdvocateSaktinath mukherjee, ;Bidyut Kumar Banerjee and ;Sushil Kumar Nancy, Advs.
Respondent AdvocateSamaresh Banerjee and ;Jayanta Bhattacharya, Advs.
DispositionPetition rejected
Cases ReferredMahima v. Madan Mohan
Excerpt:
- .....to be exercised in exceptional cases to try one or some of the issues first though in trying such issue or issues some questions of fact may have to be considered. if the decision of the issue disposes of the entire suit, the same should be tried as a preliminary one. it has been contended that this decision was arrived at after considering the supreme court decision of khanna v. dillon in : [1964]4scr409 . the question of notice goes to the root of the matter. the learned munsif committed a jurisdictional error in rejecting the petitioner's petition to try such issue as a preliminary one.3. the learned advocate appearing on behalf of the plaintiff-opposite parties elaborately dealt with the matter. he has stated that in the case of khanna v. dillon (supra) at p. 503 it has been stated.....
Judgment:
ORDER

B.N. Maitra, J.

1. The plaintiff-opposite parties Nos. 1 to 4 instituted Title Suit No. 161 of 1965 for ejectment. In December, 1977, the plaintiffs applied for local inspection of the land in question. At that stage the petitioner-defendant No. 3 put in an application to decide the preliminary 'point regarding the jurisdiction of the court to try the suit. The prayer was turned down. Hence this revisional application.

2. It has been contended on behalf of the petitioner that the notice of ejectment was served directing the defendant to vacate the premises in question on the expiry of the 30th June, 1965. The averment was that the tenancy was according to English calendar But, in fact, the tenancy in favour of the defendant's predecessor-in-interest commenced from the 12th November, 1963. Hence the suit for ejectment was not maintainable he-cause on the face of the plaint the notice was invalid in law. In order to support that contention reference has been made to the Full Bench case of Gurudas Biswas v. Charu Panna Seat in : AIR1977Cal110 . It has been stated in that case that the question of notice is in essence a point of jurisdiction and the court has HO jurisdiction to entertain the suit in the absence of a notice to quit. It is a part of the plaintiffs requirement to entitle them to maintain the suit. Reference has also been made to the case of Brijmohanlal Rathi v. Amin Chand Pyarelal in (1976) 1 Cal LJ 586 to show that under the provisions of Order XIV, Rule 2 of the Civil Procedure Code a pure question of law can be tried as a preliminary issue. Apart from the provisions of the Order, the court has an inherent power to be exercised in exceptional cases to try one or some of the issues first though in trying such issue or issues some questions of fact may have to be considered. If the decision of the issue disposes of the entire suit, the same should be tried as a preliminary one. It has been contended that this decision was arrived at after considering the Supreme Court decision of Khanna v. Dillon in : [1964]4SCR409 . The question of notice goes to the root of the matter. The learned Munsif committed a jurisdictional error in rejecting the petitioner's petition to try such issue as a preliminary one.

3. The learned Advocate appearing on behalf of the plaintiff-opposite parties elaborately dealt with the matter. He has stated that in the case of Khanna v. Dillon (supra) at p. 503 it has been stated that normally all the issues in a suit should be fried by the court. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where the court is of opinion that the whole suit may be disposed of on the issue of law alone. But the Code confers no jurisdiction upon the court to try a suit of mixed issues of law and fact as a preliminary issue. The case of Kanailal v. Pannasashi in : AIR1954Cal588 will show that if a decision on a question of law depends upon a question of fact, the question of fact must be decided first in order to avoid the necessity of an order of remand.

4. It has also been stated for the opposite parties that the question whether the notice to quit is defective raises a question both of law and fact. It is not a pure question of law and hence, such question cannot be tried as a preliminary issue. The cases of Estrela Batteries Ltd. v. Modi Industries Ltd in : AIR1976All201 and of Ghatmal v. Amaravathi Dyeing Pvt. Ltd. in : AIR1976AP70 have been cited to support that contention. It has been further contended that in the Full Bench case of Ramdayal v. Pannalal in : AIR1979MP153 it has been stated that the court can try a preliminary issue relating to jurisdiction if it can be disposed of without recording arty evidence. But the discretion to try preliminary issue of law relating to jurisdiction 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 (vide p. 155 of the report). After all revisional power is a discretionary one. The court will consider the question of the petitioner's conduct because the suit was instituted 12 years ago. He adopted dilatory tactics.

5. The plaintiff-opposite parties have alleged that initially the tenancy commenced on 12-11-1963. Later there was a change whereby the tenancy in question was according to the English calendar, whereas the defence is that the tenancy commenced from the 12th of November, 1963. This question cannot be decided without going into evidence. This is a very simple question which does not require any detailed discussion by this Court. It is not of all a pure question of law which can be decided without recording any evidence. It is a mixed question of law and fact. The provisions of the amended Rule 2 of Order XIV of the Code of Civil Procedure will clinch the issue on this and other considerations are not relevant. That Rule says :--

'2. (I) 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. In the case of Mahima v. Madan Mohan in (1980) 84 Cal WN 426 it has been stated that under the amended Rule 2 (2) an issue of law can be tried if it relates to jurisdiction of court or a bar to suit is created by any law for the time being. Since it is not a pure question of law and as evidence will have to be taken whether subsequently there was a change in the commencement of the tenancy, the learned Munsif rightly rejected the petitioner's petition. The two cases cited for the petitioner have no application whatever to the facts of this case. The question of jurisdiction does not arise on the face of the plaint. The trial court did not make any jurisdictional error or act with material irregularity in turning down the present prayer. The submissions made on behalf of the petitioner cannot be accepted.

7. The Rule is therefore discharged.

8. There will be no order as to costs.


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