Order 14 (2) OF CPC and LAW ON FRAMING PRELIMINARY
ISSUES
The stage of framing preliminary
issues is of vital importance in any dispute in civil cases. No doubt, whether
the plaint is required to be returned or not or whether it is to be rejected or
not are the other aspect which is also linked with the desirability of framing
preliminary issues in apt cases. Thus, principles of Order 7 Rule 10 of Code of
Civil Procedure (CPC) which contains the principles of return of plaint also need
elucidation. Another aspect as stated is the issue of rejection of plaint has
been illustrated in Order 7 Rule 11 (a)(b)(c) & (d) of CPC and if it
conforms to the aforesaid prescription, the plaint can be rejected. The power
of Courts under Order 7 Rule 10 of CPC is separate and distinct. The plaint can
be returned due to lack of pecuniary jurisdiction and if otherwise it is filed
in the wrong forum. The issues of disputes and claim of exclusive jurisdiction if
it is based on certain facts, then, being the question of facts and law, the
issues ought to be framed in that regard. Preliminary issues are framed for
limitation and jurisdiction. The preliminary issues are framed for question of
law. It is generally understood that if mixed question of facts and law existed,
then, framing of issues are recommended and the findings are required to be returned
on each issues including mixed question of law and facts. In fact, the Supreme
Court has also held that rather than framing preliminary issues for
jurisdiction and limitation, on all such issues including the issues of
limitation and jurisdiction, findings ought to be returned after full dress
trial and after leading of evidence. The law in this context is changed after
amendment in the Section 14(2) of CPC in 1976.
That to analyse it further, the
provisions of Order XIV Rule 2 of the Code to contend such Order XIV Rule 2 has
been substituted by Central Act No. 104 of 1976, whereby the Court is mandated
to pronounce judgment on all issues, even though the suit can be disposed of on
a preliminary issue. Such amendment was necessitated to avoid delay in the
disposal of the proceedings inasmuch as if only a preliminary issue is decided,
the further appeal and revision would be preferred only against the preliminary
issue and after the preliminary issue is decided in favour of the plaintiffs,
the evidence has to be led on the remaining issues. Therefore, to ensure
expeditious disposal of the proceedings and to avoid possibility of remand by
the appellate or revisional jurisdiction, it was made mandatory for the Court
to record reasons on all the issues. Such finding would obviate the possibility
of remand at appellate or revisional stage, even if the finding on preliminary
or other issues are to be reversed.
The Order XIV Rule 2 before
amendment by the Act No. 104 of 1976 reads thus:
“R. 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 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.”
The Order XIV Rule 2 after the
substitution of Rule 2 by the Act No. 104 of 1976, effective from 1.4.1977,
reads thus:
“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
Supreme Court, recently, in a matter captioned as Sathyanath & Anr. Vs Sarojmani, bearing Civil Appeal No. 3680
of 2022 has deliberated in detail on the above aspect. Before adverting to the
findings of Supreme Court, the facts of the case may be reproduced in nutshell.
FACTS
1.
The plaintiffs-appellants had preferred original suit against
the Defendant/ respondent for seeking a declaration that the appellants was
absolute owners of the suit property and for permanent injunction restraining
the defendant and their agents in disturbing the peaceful possession and enjoyment
of the suit property by the appellants in any manner. Initially, the defendant
filed an application under Order VII Rule 11 of the Code of Civil Procedure, 19081 for rejection of the plaint but the same was
dismissed by the trial court. It is thereafter, the defendant filed an application
to frame issues under Order XIV Rule 2(2) of the Code to treat the following as
the preliminary issues:
1. Whether the suit is
not hit by res judicata and estoppel as claimed by the defendant in the written
statement?
2. Whether the suit is not hit by res judicata and estoppel as claimed
by the defendant in the written statement?
3. Whether the suit is not barred by limitation as contented by
the defendant in the written statement?
4. Whether the Plaintiffs have deliberately and wantonly abused
the process of the court, as contented by the defendant in the written
statement?
5. Whether the suit is not valued properly and court fee paid is
deficient as claimed by the defendant in P the Written statement.?
2.
That the learned trial court dismissed the application of the
defendant and the order of the learned trial court was challenged in revision
petition under Article 227 of the Constitution of India wherein the High Court
ordered the framing of issue of res
judicata as preliminary issue.
LAW
The law in this regard could be
traced back to 1964 when, Supreme Court had the occasion to consider the above
provision in a judgment reported as Major S. S. Khanna v. Brig. F. J. Dillon AIR 1964 SC 497. It was held that under Order
XIV Rule 2 of the Code 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
postpone the settlement of the issues of fact until other issues of law have
been determined. It was held as under:
“18. ……. Under Order 14 Rule 2 Code of
Civil Procedure, 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. 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 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 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 depend upon the decision of issues of fact, would result
in a lopsided trial of the suit.”
How, the various high courts
over the years have dealt with the aspect arising out of Order 14 (2) of Code
of Civil Procedure is worth consideration.
Allahabad High Court
The amended provision of Order
XIV came up for consideration before the Full Bench of Allahabad High Court in
a judgment reported as Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad and Ors AIR 1991 ALL 89. It was held that material
changes had been brought about in CPC by substituting Order XIV Rule 2 of the
Code. The word ‘shall’ in the un-amended provision has been replaced by the
word ‘may’ in the substituted provision, therefore, it is now discretionary for the Court to
decide the issue of law as a preliminary issue, or to decide it along with the
other issues. It was further held that even all issues of law cannot be decided
as preliminary issues and only those issues of law falling within the ambit of
clause (a) and (b) of sub-rule (2) of Rule 2 could be decided. The High Court
held as under:
“22. Under the above provision
once the court came to the conclusion that the case or any part thereof could
be disposed of on the issues of law only it was obliged to try those issues
first and the other issues could be taken up only thereafter, if necessity
survived. The court had no discretion in the matter. This flows from the use of
the word “it shall try those issues first”. Material change has been brought
about in legal position by amended O. 14, R. 2 which reads as follows:—
24. The word “shall” used in old
O. 14, R. 2 has been replaced in the present Rule by the word “may”. Thus now
it is discretionary for the Court to decide the issue of law as a preliminary
issue or to decide it along with the other issues. It is no longer obligatory
for the Court to decide an issue of law as a preliminary issue.
25. Another Change brought about
by the amended provision is that not all issues of law can be decided as
preliminary issues. Only those issues of law can be decided as preliminary
issues which fell within the ambit of cls. (a) and (b) of sub-r. (2) of R. 2 of
O. 14. Cl. (a) mentions “jurisdiction of the Court” and clause (b) deals with
“bar to the suit created by any law for the time being in force.” In the
present case cl. (a) is not attracted. The case is sought to be brought within
the ambit of cl. (b). For bringing it under cl. (b) Limitation Act and the
Muslim Waqf Act have been invoked.”
HIMACHAL PRADESH HIGH COURT
A Full Bench of Himachal Pradesh
High Court in a judgment reported as Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr AIR 2007 HP 11, has held as under:
“8. The legislative mandate is very
clear and unambiguous. In the light of the past experience that the old Rule 2
whereby, in the fact-situation of the trial Court deciding only preliminary issues
and neither trying nor deciding other issues, whenever an appeal against the
judgment was filed before the Appeal Court and the Appeal Court on finding that
the decision of the trial Court on preliminary issues deserved to be reversed,
the case per force had to be remanded to the trial Court for trial on other issues.
This resulted in delay in the disposal of the cases. To eliminate this delay
and to ensure the expeditious disposal of the suits, both at the stage of the
trial as well as at the appeal stage, the legislature decided to provide for a
mechanism whereby, subject to the exception created under sub-rule (2), all
issues, both of law and fact were required to be decided together and the suit
had to be disposed of as a whole, of course based upon the findings of the
trial Court on all the issues, both of law and fact.
9. Based upon the aforesaid
reasons therefor, and in the light of legislative background of Rule 2 and the
legislative intent as well as mandate based upon such background, as well as on
its plain reading, we have no doubt in our minds that except in situations perceived
or warranted under sub-rule (2) where a Court in fact frames only issues of law
in the first instance and postpones settlement of other issues, under sub-rule
(1), clearly and explicitly in situations where the Court has framed all issues
together, both of law as well as facts and has also tried all these issues
together, it is not open to the Court in such a situation to adopt the
principle of severability and proceed to decide issues of law first, without
taking up simultaneously other issues for decision. This course of action is
not available to a Court because sub-rule (1) does not permit the Court to
adopt any such principle of severability and to dispose of a suit only on preliminary
issues, or what can be termed as issues of law. Sub rule (1) clearly mandates
that in a situation contemplated under it, where all the issues have been
framed together and have also been taken up for adjudication during the course
of the trial, these must be decided together and the judgment in the suit as a
whole must be pronounced by the Court covering all the issues framed in the
suit.”
PATNA
HIGH COURT
The Patna High Court in a
judgment reported as Dhirendranath Chandra v. Apurba Krishna Chandra and Ors AIR 1979 Pat 34 held that even if the case may
be disposed of on a preliminary issue, the Court is bound to pronounce judgment
on all the issues, subject to the provision in sub-rule (2) according to which
if the case or any part thereof may be disposed of on issue of law only and if
that issue relates to jurisdiction of the Court or a bar to the suit created by
law for the time being in force, the Court may try such issue first. The High
Court held as under:
“6. A
plain reading of R. 2 will show that ordinarily even if the case may be
disposed of on a preliminary issue, the Court is bound to pronounce judgment on
all issues. This ordinary rule is subject to only one exception which has been
provided in sub rule (2) according to which if the case or any part thereof may
be disposed of on issue of law only and if that issue of law relates to the
jurisdiction of the Court or a bar to the suit created by any law for the time
being in force the court may try such issue first. It is, therefore, clear that
a departure from the ordinary rule provided in sub-rule (1) of R. 2 can be made
by the Court only in the circumstances mentioned in sub-rule (2) and even in
these circumstances the Court has only a discretion that it may try an issue of
law relating to the points mentioned in clauses (a) and (b) of sub-rule (2) as
a preliminary issue before framing other issues. There is, however, nothing in
sub-rule (2) which in my opinion makes it obligatory for the Court to try such
an issue first in all cases. If, therefore, the Court is of opinion that in any
particular case it will be more expedient to try all the issues together and
therefore, if it refuses to try and decide any issue of law even on the points
referred to in cls. (a) and (b) of sub rule (2) as a preliminary issue before
taking up other issues”.
BOMBAY
HIGH COURT
The Bombay High Court in a
judgment reported as Usha Sales Ltd. v. Malcolm Gomes and Ors AIR 1984 Bom 60 held that after the amendment, a duty is cast upon
the Court that it must proceed to hear all the issues and pronounce the
judgment on the same, except that the Court may try an issue relating to the
jurisdiction of the Court or to the legal bar to the suit as a preliminary
issue. It was held to be more in the nature of discretion rather than a duty.
It was held as under:
“11.
From the above it is easily seen that there is an obligation cast
upon the Court that even though a case may be disposed of on a preliminary
issue the Courts shall subject to the provision of sub-rule (2) pronounce
judgment on all issues. In other words, the obligation to decide a question of
law as a preliminary issue if that decision disposes of the case or part of the
case is no longer, there. Similarly, the discretion to decide any other issue
as a preliminary issue has been taken away totally from the Court. On the other
hand, a duty is cast upon the Court that it must proceed to hear all the issues
and pronounce judgment on the same.
12.
There is, however, a small exception carved out to the above provision. The
Court may try an issue relating to the jurisdiction of the Court or to the
legal bar to the suit as a preliminary issue but this is more in the nature of
a discretion rather than a duty and the Court is not bound to try any issue
despite the provision contained in sub-r. (2) of R. 2 of O. 14 of the Code. The
words “it may try” are clearly indicative of the fact that discretion is given to
the Court and no duty is cast upon the Court to decide any issue as a
preliminary issue.”
PUNJAB & HARYANA HIGH COURT
The Punjab and Haryana High
Court in a judgment reported as Hardwari Lal v. Pohkar Mal and Ors AIR 1978 P&H 230 had the occasion to compare the provision of Order
XIV Rule 2 prior to and after the amendment and held as under:
“5. A comparative reading of the said
provision as it existed earlier to the amendment and the one after amendment
would 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
unamended Code, the categorization 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 in force.”
JAMMU
& KASHMIR HIGH COURT
The Jammu and Kashmir High Court
in a judgment reported as Smt. Aruna Kumari v. Ajay Kumar AIR 1991 J&K 1 held as under:
“4.
…..Admittedly both the parties have to lead evidence regarding both
the issues. In case issue No. 2 is allowed to be treated as preliminary the
parties will certainly lead evidence in the case and instead of disposing of
the case expeditiously it will prolong the matter and frustrate the very basis
of law contained in Order XIV, Rule 2, Civil Procedure Code. The evidence to be
led by both the parties will almost cover both the issues and it cannot,
therefore, be said that by allowing issue No. 2 to be treated as preliminary
the trial of the case would be expedited. When we review the whole law on the
point it becomes clear that where issue of jurisdiction is a mixed question of
law and fact requiring evidence to be recorded by both the sides same cannot be
treated as a preliminary issue.”
SUPREME
COURT
In furtherance to the earlier judgment
of Supreme Court as reported in Major S. S. Khanna (Supra) The Supreme Court in a judgment reported as Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and
Ors. (2006) 5 SCC 638, wherein it
was held as under:
“13. Sub-rule (2) of Order 14 Rule 2
CPC lays down that where issues both of law and of fact arise in the same suit,
and the court is of the 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. The provisions of this Rule came up for
consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon
[(1964) 4 SCR 409 : AIR 1964 SC 497] and it was held as under: (SCR p. 421)
Though there has been a slight
amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but
the principle enunciated in the above quoted decision still holds good and there
can be no departure from the principle that the Code confers no jurisdiction
upon the court to try a suit on mixed issues of law and fact as a preliminary
issue and where the decision on issue of law depends upon decision of fact, it
cannot be tried as a preliminary issue.”
The Supreme Court has therefore
reiterated the principles enunciated in Major S. S. Khanna (Supra) and
it is further held that the Code confers no jurisdiction upon the Court to try a suit on
mixed issues of law and fact as a preliminary issue and where the decision on
issue depends upon the question of fact, it cannot be tried as a preliminary
issue. The said finding arises from the provision of Order XIV Rule 2 clause
(a) and (b).
After the amendment, discretion
has been given to the Court by the expression ‘may’ used in sub-rule (2) to try
the issue relating to the jurisdiction of the Court i.e. territorial and
pecuniary jurisdiction, or a bar to the suit created by any law for the time
being in force i.e., the bar to file a suit before the Civil Court. Hence, if
Order XIV Rule 2 is read along with Order XII Rule 5, the Court is expected to
decide all the issues together unless the bar of jurisdiction of the Court or
bar to the suit in terms of sub-rule (2) clause (a) and (b) arises. The
intention to substitute Rule 2 is the speedy disposal of the lis on a question
which oust either the jurisdiction of the Court or bars the plaintiff to sue
before the Civil Court.
Thus, if the issue is a mixed
issue of law and fact, or issue of law depends upon the decision of fact, such
issue cannot be tried as a preliminary issue. In other words, preliminary
issues can be those where no evidence is required and on the basis of reading
of the plaint or the applicable law, if the jurisdiction of the Court or the
bar to the suit is made out, the Court may decide such issues with the sole
objective for the expeditious decision. Thus, if the Court lacks jurisdiction
or there is a statutory bar, such issue is required to be decided in the first
instance so that the process of civil court is not abused by the litigants, who
may approach the civil court to delay the proceedings on false pretext.
The Supreme Court in A. Shanmugam v. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai Sangam & Ors (2012) 6 SCC 430 has held as
under:
“39.
Our courts are usually short of time because of huge pendency of
cases and at times the courts arrive at an erroneous conclusion because of
false pleas, claims, defences and irrelevant facts. A litigant could deviate
from the facts which are liable for all the conclusions. In the journey of
discovering the truth, at times, this Court, at a later stage, but once
discovered, it is the duty of the court to take appropriate remedial and
preventive steps so that no one should derive benefits or advantages by abusing
the process of law. The court must effectively discourage fraudulent and
dishonest litigants.”
The aforesaid judgments if put
together in a broad canvas, it may appear that the judgments are in consonance
with the principles laid down by the Supreme Court in Ramesh B. Desai (Supra) that not all issues of law can
be decided as preliminary issues. Only those issues of law can be decided as
preliminary issues which fell within the ambit of clause (a) relating to the
“jurisdiction of the Court” and (b) which deal with the “bar to the suit
created by any law for the time being in force.” The reason to substitute Rule
2 is to avoid piecemeal trial, protracted litigation and possibility of remand
of the case, where the appellate court differs with the decision of the trial
court on the preliminary issues upon which the trial court had decided.
In SATHYANATH (Supra) thus Supreme Court has
summarized in para 33:
33.
Keeping in view the object of substitution of sub-Rule (2) to avoid the
possibility of remanding back the matter after the decision on the preliminary
issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX
Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25
to record findings on all the issues.
Therefore, it was held that the
order of the High Court remanding the matter to the learned trial court to
frame preliminary issues runs counter to the mandate of Order XIV Rule 2 of the
Code and thus, not sustainable in law. The learned trial court should record
findings on all the issues so that the first appellate court has the advantage
of the findings so recorded and to obviate the possibility of remand if the
suit is decided only on the preliminary issue. The amendment in 1976 in the Order
14(2) of Code of Civil Procedure appears to have been necessitated due to the
fact that framing of preliminary issues and appeal/revision against such
framing or not framing could consume long period of time and hence, it was felt
necessary that the preliminary issues should only be framed when it is only on
legal issues as narrated therein and on pure question of law and not otherwise.
The discretion is therefore accorded to the Courts, whether to frame
preliminary issues after the amendment with the object of expediency. The
underlying object is to conclude the trial on all plausible issues, rather than
to deliberate on preliminary issues and remain prone to appeals or revisions,
thereby in effect halting the process of effective adjudication. What therefore
follows is that unless in bare reading of plaint and documents, if the bar of jurisdiction
or if the plaint is otherwise explicitly barred by law that preliminary issues
could be framed and not otherwise. The aforesaid discussions are in sync with
the judgments/precedents are a pointer to that.
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Anil K Khaware
Founder & Senior
Associate
Societylawandjustice.com
