Whether issue of jurisdiction which is mixed question of law and fact can be tried as preliminary issue?

 Therefore, after reviewing the entire case-law on the point, we are of opinion that under Order 14 Rule 2 C. P. Code, an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. 

 It has been held that the issue relating to jurisdiction can be tried as a
preliminary issue only if it can be disposed of without recording any evidence.
where the issue of jurisdiction is a mixed question of law and fact requires
recording of evidence the same cannot be tried as preliminary issue.

Madhya Pradesh High Court

Ramdayal Umraomal vs Pannalal Jagannathji on 12 January, 1979

Equivalent citations: AIR 1979 MP 153

Bench: G Oza, G Sohani, P Mulye

1. This case has come up before this Full Bench in somewhat peculiar circumstances. In a suit instituted by the plaintiff-non-applicant at Mandsaur claiming damages for breach of contract against the defendant applicant, who is a resident of Raipur, the defendant in his written-statement among other pleas challenged the territorial jurisdiction of the Mandsaur court On the pleadings of the parties the learned trial court framed as many as seven issues including the issue about jurisdiction. Thereafter, the defendant applicant submitted an application under Order 14 Rule 2 and order 15 Rule 2 read with Section 151 C. P. Code praying that the issue about jurisdiction should be tried as a preliminary issue. The learned trial court, looking to the pleadings of the parties and the nature of controversy involved in the suit felt that the issue of jurisdiction could not be decided without recording evidence on all the issues, and therefore by its order dated 12-3-1976, directed that evidence of the parties on all the issues shall be first recorded and issue about jurisdiction shall be decided and thereafter, other issues shall be decided. Being aggrieved by this order, the defendant has come up in this revision.

2. When the case came up for hearing before the learned Single Bench, he felt that though the only question for decision in this revision is whether the issue relating to jurisdiction of the trial court which requires the taking of some evidence, has to be decided as a preliminary issue or not, in view of the conflicting decisions of this court on this point, the papers be laid before the Hon'ble the Chief Justice for constituting a larger Bench to hear and decide this revision itself. Accordingly, a Division Bench was constituted by the Chief Justice, who on an assumption that it was called upon to answer the reference made by the Single Judge, answered the reference by its order dated 25-8-1977, reported in Ramdayal Umraomal v. Pannalal Jagannathji (1977 MPLJ 752): (AIR 1978 Madh Pra 16) as under:

"Accordingly we answer the reference as in paragraphs 4 and 5 above."

Thereafter when this revision petition was again fixed for hearing before the learned single Judge on 13-10-1977 he directed that the case be listed before the same Division Bench, which had heard the reference initially as, looking to the wording of the order of reference dated 20-4-1976, he was of the opinion that the revision petition could not be heard and decided by him. It appears, that thereafter anyhow the case could not be listed for hearing before the same Bench which had to decide the revision on merits, with the result that as per order dated 14-3-1978 of the Hon'ble the Chief Justice, the matter was placed for hearing before another Division Bench. This Division Bench, relying on Rule 9 and Rule 12 of Chapter I of the High Court Rules and Orders in Madhya Pradesh by its order dated 31-8-1978 directed for constitution of a larger Bench which necessitated the Hon'ble the Chief Justice to constitute this Full Bench.

3. It was urged by learned counsel for the applicant, that the court below committed a manifest error of law in taking the view that Issue No. 5 about jurisdiction could not be decided as a preliminary issue, even though it felt that it being a mixed question of law and fact could not be decided without recording evidence. He, further submitted that in all preliminary issues, whether they relate to jurisdiction, valuation, court-fee or limitation, some evidence is bound to overlap with the evidence of other issues for which the witnesses may also be the same, still the learned trial Court was bound to decide the preliminary issue first as it goes to root of the matter and in support of this submission, he placed reliance on the Full Bench decision in Santosh Chandra v. Gyan Sundar Bai (1970 Jab LJ 290) which is relied upon by Single Bench decision in Banchand v. Basanti Devi (1972 Jab LJ 448) as also on a single bench decision in State of M.P. v. Jham-singh (1976 Jab LJ 693) and some other decisions which have been referred to in the order dated 25-8-1977 passed in this case by the Division Bench and reported in Ramdayal Umraomal v. Pannalal Jagannath (1977 MP LJ 752 : AIR 1978 Madh Pra 16) as mentioned above.

4. As against this learned counsel for the non-applicant relied on the Single Bench decisions in Mohan Singh v. Sam-patbai (Civil Revn No. 252 of 1974) (Indore Bench), Madanlal Kapur v. Shri Krishna Lime Co. (1970 MP LJ (SN) 111), Dhamani Bhukmaria and Co. v. Gopal Co. (1967 MP LJ (SN) 25), S. S. Khanna v. F. J. Dillon (AIR 1964 SC 497), Estrela Batteries Ltd. v. Modi Industries Ltd. (AIR 1976 All 201), Jaggaji v. Kesharbai (Civil Revn No. 523 of 1975) (Indore Bench) decided on 7-9-1977, and some other decisions, and submitted that an issue involving the question of jurisdiction, valuation, court-fee and limitation etc, which require recording of evidence should not be decided as preliminary issues as such issues are mixed questions of law and fact, as in the present case, taking into consideration the nature of the controversy raised in the written statement, even in regard to the issue about jurisdiction, it would appear that most of the persons who would be witnesses to prove the various documents which are sought to be used for the determination of the issue about jurisdiction, will also be persons who will be witnesses of fact in regard to the merits of the case. He therefore, submitted that in order to save time, expenses and duplication of evidence, it would, as such in place of minimising inconvenience of the parties, add to their inconvenience if ultimately it is held that the court has jurisdiction for in that contingency, these very witnesses will have to be produced twice over. He therefore, urged that if such a procedure of recording piecemeal evidence on issue about jurisdiction was not adopted by the trial court, it cannot be said that it has committed any error within the meaning of Section 115 of the Code of Civil Procedure and consequently no interference with the impugned order is called for.

5. The provisions of order 14 Rule 2 under the old Code was as follows:--

"Where the issues both of law and of fact arise under 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 amended Rule "2" of Order 14, Code of Civil Procedure under the present Code, is as follows:--

"Court to pronounce judgments on all issues:-- (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.

(ii) 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) on 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."  
 

This provision makes it clear that the issue as to jurisdiction may be an issue of law or of fact or a mixed issue. The obligation to try the issue of jurisdiction as preliminary arises only when it is an issue of law. Issue of jurisdiction depending on question of fact and, or mixed question of law and fact, must be decided on merits at one and the same time, along with the other issues. If the court finds, on a trial, on merits so far as this issue of jurisdiction goes, that the case is not cognizable by the court because of want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper court, and if, on the other hand, it finds that having regard to the nature of the suit, it is not cognizable by the class of courts to which the court belongs, the plaintiffs suit will have to be dismissed in its entirety. Discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without re-cording of any evidence.

6. The controversy regarding the provisions of order 14 Rule 2, C.P.C. has been set at rest by the Supreme Court in a decision reported in S. S. Khanna v. F. J. Dillon (AIR 1964 SC 497) wherein it has been held :--

"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 questions of law and facts 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 the issues even of law depends upon the decision of the issues of fact, would result in a lop-sided trial of the suit".

In Santosh Chandra v. Gyan Sundarbai (1970 Jab LJ 290) (FB) there is only a passing reference on the basis of which it could not be said that the Full Bench took the view that even mixed questions of law and fact should be tried as preliminary issues as, in that case, there is a passing reference that-

"It would have been better if the trial Judge had tried these two questions as preliminary issue of law".

Therefore these observations of the Full Bench do not help the applicant in any way.

7. On a perusal of the record, it appears that on the rival pleas taken in the suit, the evidence required on the issues of jurisdiction would cover almost the entire scope of the suit and it is, therefore clear that requiring of evidence to be led initially on the issue of jurisdiction, treating it as a preliminary issue, would be meaningless and it would result in a lop-sided trial. It further appears that almost the entire evidence required to be adduced in the suit would be relevant for deciding the question of jurisdiction. That being so, it would be proper to record the entire evidence at one time, rather than to record it piecemeal when practically the entire evidence would be required to be led on the question of jurisdiction also. It is only issue of law going to the root of the case and capable of being decided without recording the evidence that must be tried in the first instance and decision on the issues of fact should be postponed till after the legal issues have been determined. In the present case the learned trial court was of the view that the decision on the issue of jurisdiction depended upon the question of fact also which would require recording of evidence and in this view of the matter, the learned trial court has committed no error in exercise of its jurisdiction in passing the impugned order. The decision reported in Ghatmal v. Amaravathi Dyeing Private Ltd. (AIR 1976 Andh Pra 70) holds that the statutory rule of procedure which must be generally followed, is that the Court should give its decision on all the issues in the case so as to avoid unnecessary remand and protraction of litigation. It has also been held therein that an order that a preliminary issue should be taken first or not for decision, does not decide rights of the parties and is not a case decided within the meaning of Section 115 C. P. C., and cannot be interfered with in revision. This decision has also relied on the Supreme Court decision reported in S. S. Khanna v. F. J. Dillon (AIR 1964 SC 497). In Estrela Batteries Ltd. v. Modi Industries Ltd. (AIR 1976 All 201) relying on its earlier decision reported in Basti Ram Roopchand v. Radhey Sham (AIR 1973 All. 499), as also on the Supreme Court decision reported in S. S. Khanna v. F. J. Dillon (supra) has held that the finding of the trial court that an issue about jurisdiction, which involves a mixed question of law, cannot be decided as a preliminary issue, under Order 14 Rule 2, C. P. C., is not vitiated by any error within Section 115, C. P. C. and cannot be interfered with in revision.

8. It was also urged on behalf of the applicant that the Division Bench, by its order dated 25-8-1977 having decided the question of jurisdiction, this Full Bench is not competent and has no jurisdiction to review or interfere with the conclusion arrived at by that Division Bench. However, we are not persuaded to agree with this submission as, stated above, that Division Bench has not at all decided that question in a clear and specific manner in which it was called upon to decide and, consequently, this Full Bench has jurisdiction to decide the controversial question about jurisdiction.

9. It was also urged on behalf of the applicant that question of jurisdiction can never be an issue as such, as it is the bounden duty of the Court to decide first the question of jurisdiction. But in our opinion this submission is also devoid of substance in view of the clear wording of Order 14, Rule 2, C. P. C. That apart, learned counsel for the applicant was unable to substantiate this contention with any authority.

10. Therefore, after reviewing the entire case-law on the point, we are of opinion that under Order 14 Rule 2 C. P. Code, an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. Consequently the decisions cited as authorities on behalf of the applicant cannot be accepted as laying down the correct law. In fact the Division Bench Order dated 25-8-1977 reported in Ramdayal Umraomal v. Pannalal Jagannathji (1977 MP LJ 752 : AIR 1978 Madh Pra 16) has not at all answered the reference in clear words either this way or that way, creating confusion, and we are unable to agree with the view expressed therein and conclusion reached therein, if any, as that decision also has not decided the case correctly.

11. In the result, there being no merit in this revision, the same is dismissed with costs. Counsel's fee according to schedule, if certified. The parties shall appear in the trial Court on 12th February, 1978. It is hoped that the case being sufficiently old, the trial Court shall dispose it of expeditiously.

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