HARDWARI LAL Vs. POKHAR MAL

JUDGEMENT

(1.) THE salutary provisions of the Civil Procedure Code (Amendment) Act, 1976, which were enacted for the laudable object of plugging the loopholes in procedural law and, thus, expediting the conclusion of protracted litigation, appear to have failed to make an impact, at least in the present case. The facts may be noticed, though briefly. Respondent Nos. 1 to 6 (in the present Revision Petition) filed a suit against Hardwari Lal petitioner and 29 others (respondent Nos. 7 to 35) for possession by partition of the half share of two shops situated at Mohindergarh. The suit was contested and the trial Court framed the necessary issues to cover the controversial points. One of the issues, i.e. issue No. 3 was to the following effect : -

(2.) IT transpires that a prayer was made on behalf of the defendant that the above issue may be treated as a preliminary issue as the plaintiffs had allegedly under -valued the suit property. The trial Court vide its order, dated February 22, 1977, considered this matter and was of the view that the question regarding the valuation of the property to be fixed, depended on evidence about the condition and the market value of the shops and this matter could be conveniently decided along with the other issues when the parties lead their evidence. The learned Subordinate Judge, therefore, refused to try the said issue as a preliminary issue. It is this order of the learned Subordinate Judge which is the subject -matter of attack in the present Revision Petition.

(3.) A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment should clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the un -amended Code, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this is contained in sub -rule (2). This sub -rule relaxes the mandate to a limited extent by conferring a discretion upon the Court that if it 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. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law inforce. It is indeed contended by the learned counsel for the petitioner that any question touching upon the jurisdiction of the Court, would automatically become an issue of law, but there is no warrant for this general proposition. An objection in regard to the jurisdiction of the Court may pertain either to the inherent lack of jurisdiction of the Court or the lack of jurisdiction on account of certain factual allegations. In the former case, where it is not necessary to go into any controversial facts, the question may be treated as an issue of law, but if it is necessary to decide a factual controversy before arriving at a conclusion on the challenge to jurisdiction, such a question cannot be treated as a pure question of law. The use of the words "an issue of law only" in the first part of sub -rule (2) has to be given its due meaning and import in the context. If every controversy pertaining to the jurisdiction of the Court whether dependent upon consideration of facts or otherwise, was to be deemed as an issue of law, the use of the words noticed above would be without purpose and this cannot obviously be the intention of the Legislature. I am of the firm view that the amendment to Order 14, rule 2 of the Code has changed the notions in regard to considering some or more of the issues as preliminary issue for being tried on preferential basis and the scope in this behalf has now been considerably tapered. In view of this amendment, there is no infirmity in the order passed by the trial Court refusing to try issue No. 3 as a preliminary issue, more so when the determination of this issue required a probe into the market value of the property, which fact can be gone into when the whole case is tried.