MADHABANANDA RAY Vs. SPENCER AND CO LTD

JUDGEMENT

(1.) The defendants in O.S. No. 86 of 1977-III of the Court of Subordinate Judge, Bhubaneswar, are the petitioners in this revision. The present opposite party filed the aforesaid suit for realisation of Rs. 20,885.70 paise from the defendants towards the value of the consignment and interest thereof on the allegation that the goods in those consignment were misappropriated by them. The present petitioners filed a written statement denying the plaint allegations and alleging that the goods were delivered to M/s. Panda Medical Hall, Jajpur as per the telephonic instructions of the plaintiff. It was further alleged in the written statement that as per condition No. 17 embodied in the consignment note all the disputes relating to the consignment were subject to the jurisdiction of the Court at Cuttack and, therefore, the Court at Bhubaneswar had no territorial jurisdiction to entertain the suit. Issues were framed by the trial Court, one of which was "Has this Court jurisdiction to try the suit" ? A petition was filed on 2-12-80 on behalf of the defendants to decide the said issue relating to the jurisdiction of the Court as a preliminary issue instead of deferring the same to be decided at the time of hearing of the suit as the said question goes to the root of the matter and in the event the Court ultimately decides at the hearing that the Court at Bhubaneswar has no jurisdiction to entertain the suit, all the evidence adduced, expenses incurred and time consumed in this process of hearing of the suit shall be rendered futile. This revision was placed before a learned single Judge of this Court, who, by order 10-8-1984, referred the matter to be decided by a larger Bench as the learned Judge was of the view that there are apparent conflicts in the single Judge decisions of this Court specific reference of which has been made in the order. This is how we have been called upon to analyse the position of law touching the question.

(2.) The sole question to be decided in this revision is whether the issue relating to the territorial jurisdiction of the Court should be taken up for hearing as a preliminary issue. It is relevant in this connection to note the provisions of law governing the subject. Order 14, Rule 2 of the Civil P.C. has now been substituted by Act 104 of 1976. Former R.2 was as follows :-

(3.) Out of the decisions taken note of in the referring order, the decisions of the Chief Justice S. Barman (as he then was) in Civil Revn. No. 187 of 1967, (M/s. Janata Cinema, Grand Road, Puri v. Ruprag Private Ltd.)and the another reported in ILR (1958) Cut 180, (Y. Krushna Murty v. Maddi Veeranna), that of Justice (J. K. Misra (as he then was) reported in ILR (1970) Cut 152, (Ram. Saraf v. Mani Dei), the decision of Justice S.K. Ray (as he then was) reported in (1975) 41 Cut LT 1296, (M. Appala Narasiah v. Arjuno Jena) and the decision of Justice P.K. Mohanti, reported in ILR (1976) Cut 1482, (Smt. Sarojini Rath v. Bhaskar Rath) relate to cases prior to the amendment of the Civil P.C. in 1976. Before the insertion of new R.2 by the Amendment Act of 1976 the settled position was that in appealable cases the Court should as far as possible decide all the issues together, as piecemeal trial of some of the issues might lead to protracted litigation and reported appeals in the same suit. In a decision reported in AIR 1964 SC 497, (Major S.S. Khanna v. Brig. F.J. Dhillon), their Lordships of the Supreme Court observed that under O.14, R.2 of the 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 issue 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. Their Lordships observed that the jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit or a part thereof may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and of fact as preliminary issues. 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. Justice, S. Barman (as he then was) in the decision reported in ILR (1958) Cut 180 (supra) deprecated the trial of a suit piecemeal and in the decision in Civil Revn. No. 187 of 1967 (supra) followed the same principle. In the latter case, his Lordship was of the view that the issues relating to the jurisdiction of the Court should not in the facts of that case be decided without going into evidence, and in such cases piecemeal trial of such issues should not be encouraged. In the decision reported in ILR (1970) Cut 152(supra), Justice G.K. Misra (as he then was) has examined an order passed by the Munsif rejecting the prayer for trial of two issues i.e. (1) an issue relating to maintainability of the suit in view of Art.113 of the Limitation Act, (2) Whether the suit is barred under O.2, R.2 of the Civil P.C. While dismissing the revision his Lordship has observed that the suit must be tried as a whole and not piecemeal unless it involves the question of jurisdiction. The point was emphasized by saying that if the valuation of the suit be such that it will oust the jurisdiction of the Court before whom it was instituted, then in such cases ordinarily that issue should he tried as a preliminary issue to prevent unnecessary harassment to the litigants. His Lordship further observed that in all other matters it is always desirable that the cases should be tried as a whole, so that it would not be remanded times without number from the appellate Court to reexamine other matters left undecided. In the decision reported in (1975) 41 Cut LT 1296 (supra), Justice S.K. Ray (as he then was) explained the legal position by observing that the purpose of this rule is that where the entire case or part of it can be disposed of by determining an issue of law, it shall be so done, as that will save unnecessary inconvenience and expenses to the parties and waste of time and labour of the Court as well. Therefore, if these preconditions embodied in this rule are fulfilled, there is no option other than to try that issue of law as a preliminary issue. In that case the question as to whether the plea of res judicata was to be taken up as a preliminary issue was under consideration. In the facts of that case his Lordship held that the basic facts on which the issue of res judicata has been framed stand admitted in the plaint and for that reason the adjudication of that issue would involve a reference to the admitted pleadings and the judgements of the different Courts in the prior litigation. Justice P.K. Mohanti (as he then was) in his decision reported in ILR (1976) Cut 1482(supra) held that the trial of a case piecemeal is a serious evil to the parties, as it leads to protracted litigation and repeated appeals, but at the same time, observed that when issues of law, going to the root of the jurisdiction of the Court, arise, the Court must try those issues first. The rule as it existed prior to the amendment, permitted the Court to try the issues of law preliminarily, if it was of opinion that the case or any part thereof may be disposed of by deciding those issues only. Any interpretation of that rule that in no event the issues of law could be tried preliminarily would oppose to the language of the rule itself, and therefore, cannot be accepted. The scope and applicability of the said rule have been indicated in the aforesaid cases and in many other cases of different High Courts. The conscientious opinion was that in appealable cases piecemeal trial by taking up some of the issues preliminarily should be avoided as it may lead to protracted litigation and repeated appeals in the same suit, the exception being where the issues of law going to the root of the case arise which are capable of being decided without evidence in that event the Court shall be bound to try those issues first. Discretion vested in the Court under the rule was to be exercised depending upon the facts of each case. Thus there appears to be no apparent conflict in the above mentioned decisions which were on the basis of the old rule as it existed before the amendment.