SATHYANATH & ANR VS SAROJAMANI Case
SATHYANATH & ANR VS SAROJAMANI Case
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3680 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 20375 OF 2021)
SATHYANATH & ANR. .....APPELLANT (S)
SAROJAMANI .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order dated 3.9.2021
whereby in the revision petition filed by the defendant under Article
227 of the Constitution of India, the trial court was directed to frame
preliminary issue as to whether the suit is barred by res judicata.
2. The plaintiffs-appellants filed O.S. No. 95 of 2016 against the
respondent, their paternal aunt. The appellants claimed a declaration
for declaring the appellants as absolute owners of the suit property,
judgment and decree in O.S. No. 65 of 2003 as null and void, and, for
permanent injunction restraining the defendant and their agents in
disturbing the peaceful possession and enjoyment of the suit property
1
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 on 20.6.2017. 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 resjudicata and estoppel as
claimed by the defendant in the written statement in Para- I 0 &
11.
2. Whether the suit is not hit by resjudicata and estoppel as
claimed by the defendant in the written statement in Para-12.
3. Whether the suit is not barred by limitation as contented by
the defendant in the written statement in Para-13.
4. Whether the Plaintiffs have deliberately and wantonly abused
the process of the court, as contented by the defendant in the
written statement in Para-15 and 16.
5. Whether the suit is not valued properly and court fee paid is
deficient as claimed by the defendant in Para 18 of the Written
statement.”
3. The learned trial court dismissed the application of the defendant on
3.10.2019. Such 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.
4. Learned counsel for the appellants relied upon provisions of Order XIV
Rule 2 of the Code to contend such Order XIV Rule 2 has been
1 For short, the ‘Code’
2
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. It was argued that 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 obliviate the possibility of remand at appellate or
revisional stage, even if the finding on preliminary or other issues are
to be reversed.
5. 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.”
6. The said provision came up for consideration before this Court in a
judgment reported as Major S. S. Khanna v. Brig. F. J. Dillon
2
. It
was held that under Order XIV Rule 2 of the Code where issues both of
2 AIR 1964 SC 497
3
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.”
7. 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
4
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.”
8. Some other provisions of the Code, which are relevant to decide the
issues raised in the preset appeal are as follows:
“ORDER XX
JUDGMENT AND DECREE
“5. Court to state its decision on each issue. – In suits in which
issues have been framed, the Court shall state its finding or
decision, with the reasons therefor, upon each separate issue,
unless the finding upon any one or more of the issue is sufficient
for the decision of the suit.
ORDER XLI
APPEALS FROM ORIGINAL DECREES
24. Where evidence on record sufficient, Appellate Court may
determine case finally. - Where the evidence, upon the record is
sufficient to enable the Appellate Court to pronounce judgment,
the Appellate Court may, after resettling the issues, if necessary,
finally determine the suit, notwithstanding that the judgment of
the Court from whose decree the appeal is preferred has
proceeded wholly upon some ground other than that on which
the Appellate Court proceeds.
25. Where Appellate Court may frame issues and refer them for
trial to Court whose decree appealed from. - Where the Court
from whose decree the appeal is preferred has omitted to frame
or try any issue, or to determine any question of fact, which
appears to the Appellate Court essential to the right decision of
the suit upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court from
whose decree the appeal is preferred, and in such case shall
direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return
5
the evidence to the Appellate Court together with its findings
thereon and the reasons therefor [within such time as may be
fixed by the Appellate Court or extended by it from time to
time.”
9. 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.
3
It was held that material changes had been brought about by
substituting Order XIV Rule 2 of the Code. The word ‘shall’ in the
unamended 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:—
xxx xxx xxx
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
3 AIR 1991 ALL 89
6
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.”
10. A Full Bench of Himachal Pradesh High Court in a judgment reported as
Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr.
4
, 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
4 AIR 2007 HP 11
7
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. Subrule (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.”
11. A Single Bench of Punjab and Haryana High Court in a judgment
reported as Hardwari Lal v. Pohkar Mal and Ors.
5
compared 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 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 subrule 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
5 AIR 1978 P&H 230
8
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.”
12. A Single Bench of Patna High Court in a judgment reported as
Dhirendranath Chandra v. Apurba Krishna Chandra and Ors.
6
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 judgement on all issues. This ordinary rule is
subject to only one exception which has been provided in subrule (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 subrule (2) as a preliminary issue before taking up other issues.
6 AIR 1979 Pat 34
9
xxxx ”
13. A Single Bench of Bombay High Court in a judgment reported as Usha
Sales Ltd. v. Malcolm Gomes and Ors.
7
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.”
14. A Single Bench of Jammu and Kashmir High Court in a judgment
reported as Smt. Aruna Kumari v. Ajay Kumar
8
held as under:
“4. …..Admittedly both the parties have to lead evidence
7 AIR 1984 Bom 60
8 AIR 1991 J&K 1
10
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.”
15. The matter has also been examined by this Court in a judgment
reported as Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and
Ors.
9
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)
“xxx xxx”
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.”
16. This Court in Ramesh B. Desai held that the principles enunciated in
Major S. S. Khanna still hold good and the Code confers no
9 (2006) 5 SCC 638
11
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 such as under the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 and numerous other laws particularly relating to land
reforms. 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.
17. We may state that the First Schedule appended to the Code contains
the procedure to be applied in respect of the matters coming for
adjudication before the Civil Court. Such procedure is handmaid of
justice as laid down by the Constitution Bench judgment of this Court
reported as Sardar Amarjit Singh Kalra (Dead) by Lrs. v. Pramod
Gupta (Smt) (Dead) by Lrs. & Anr.
10
wherein it was observed as
10 (2003) 3 SCC 272
12
under:
“26. Laws of procedure are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not to
foreclose even an adjudication on merits of substantial rights of
citizen under personal, property and other laws. Procedure has
always been viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify miscarriage of
justice……..”
18. A three Judge Bench in a subsequent judgment reported as Kailash v.
Nanhku & Ors.
11
held that all rules of procedure are handmaid of
justice. The language employed by the draftsman of processual law
may be liberal or stringent but the object of prescribing procedure is to
advance the cause of justice. The Court held as under:
“28. All the rules of procedure are the handmaid of justice. The
language employed by the draftsman of processual law may be
liberal or stringent, but the fact remains that the object of
prescribing procedure is to advance the cause of justice. In an
adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice
dispensation. Unless compelled by express and specific language
of the statute, the provisions of CPC or any other procedural
enactment ought not to be construed in a manner which would
leave the court helpless to meet extraordinary situations in the
ends of justice. The observations made by Krishna Iyer, J.
in Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774] are
pertinent: (SCC p. 777, paras 5-6)
“The mortality of justice at the hands of law troubles a
judge's conscience and points an angry interrogation at
the law reformer.
The processual law so dominates in certain systems as
to overpower substantive rights and substantial justice.
The humanist rule that procedure should be the
handmaid, not the mistress, of legal justice compels
consideration of vesting a residuary power in judges to
11 (2005) 4 SCC 480
13
act ex debito justitiae where the tragic sequel otherwise
would be wholly inequitable. … Justice is the goal of
jurisprudence — processual, as much as substantive.”
29. In State of Punjab v. Shamlal Murari [(1976) 1 SCC 719 :
1976 SCC (L&S) 118] the Court approved in no unmistakable
terms the approach of moderating into wholesome directions
what is regarded as mandatory on the principle that: (SCC p.
720)
“Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions
are the handmaid and not the mistress, a lubricant, not a
resistant in the administration of justice.”
In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] the
Court reiterated the need for interpreting a part of the adjective
law dealing with procedure alone in such a manner as to
subserve and advance the cause of justice rather than to defeat
it as all the laws of procedure are based on this principle.”
19. This Court in Sugandhi v. P. Rajkumar
12
held that if the procedural
violation does not seriously cause prejudice to the adversary party,
Courts must lean towards doing substantial justice rather than relying
upon procedural and technical violations. It is not to be forgotten that
litigation is nothing but a journey towards truth which is the foundation
of justice and the Court is required to take appropriate steps to thrash
out the underlying truth in every dispute. It was held as under:
“9. It is often said that procedure is the handmaid of justice.
Procedural and technical hurdles shall not be allowed to come in
the way of the court while doing substantial justice. If the
procedural violation does not seriously cause prejudice to the
adversary party, courts must lean towards doing substantial justice
rather than relying upon procedural and technical violation. We
should not forget the fact that litigation is nothing but a journey
12 (2020) 10 SCC 706
14
towards truth which is the foundation of justice and the court is
required to take appropriate steps to thrash out the underlying
truth in every dispute. Therefore, the court should take a lenient
view when an application is made for production of the documents
under sub-rule (3).”
20. The provisions of Order XIV Rule 2 are part of the procedural law, but
the fact remains that such procedural law had been enacted to ensure
expeditious disposal of the lis and in the event of setting aside of
findings on preliminary issue, the possibility of remand can be avoided,
as was the language prior to the unamended Order XIV Rule 2. 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.
21. In fact, in a judgment reported as A. Shanmugam v. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam
& Ors.
13
, this Court held as under:
“39. Our courts are usually short of time because of huge
13 (2012) 6 SCC 430
15
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.”
22. The different judgments of the High Court referred to above are in
consonance with the principles laid down by this Court in Ramesh B.
Desai 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.
23. On the other hand, learned counsel for the respondent relies upon the
judgments of this Court reported as Abdul Rahman v. Prasony Bai &
Anr.
14
, Srihari Hanumandas Totala v. Hemant Vithal Kamat &
Ors.
15
and Jamia Masjid v. K.V. Rudrappa (Since Dead) by LRs. &
Ors.
16
to contend that on a question of res judicata, the preliminary
issue needs to be framed.
14 (2003) 1 SCC 488
15 (2021) 9 SCC 99
16 2021 SCC OnLine SC 792
16
24. In Abdul Rahman, this Court was examining a suit filed by the
appellant in the year 1999 to declare that the defendant is not the
daughter of Mangal Singh and that the appellant is in adverse
possession even during the life time of Mangal Singh. An additional
issue was framed regarding the jurisdiction of the civil suit to try the
said suit. The High Court in proceedings passed an order on
29.11.2001 dismissing the suit on the preliminary issue whether the
dispute to the present civil suit has already been decided and
adjudicated by the Court and is barred by the principles of res judicata.
An intra court appeal was filed which was dismissed on 4.12.2001 and
thereafter, the matter travelled to this Court. In these circumstances,
this Court held as under:
“21. For the purpose of disposal of the suit on the admitted
facts, particularly when the suit can be disposed of on
preliminary issues, no particular procedure was required to be
followed by the High Court. In terms of Order 14 Rule 1 of the
Code of Civil Procedure, a civil court can dispose of a suit on
preliminary issues. It is neither in doubt nor in dispute that the
issues of res judicata and/or constructive res judicata as also the
maintainability of the suit can be adjudicated upon as
preliminary issues. Such issues, in fact, when facts are admitted,
ordinarily should be decided as preliminary issues.”
25. A perusal of the above judgment of this Court shows that it was an
admitted fact that issue of res judicata and of constructive res judicata
can be adjudicated as preliminary issue. Since it was an admitted fact,
it cannot be said that principle of law has been enunciated that a plea
17
of res judicata can be decided as a preliminary issue.
26. In Srihari Hanumandas Totala, the property was mortgaged in
favour of Karnataka State Finance Corporation17. The Corporation
auctioned the property as the loan was not repaid. The legal heirs of
the borrower filed a suit in OS No. 138 of 2008 challenging the sale
deed dated 8.8.2006 executed by the Corporation and partition of the
suit property. A separate OS No. 103 of 2007 was filed by the purchaser
from the Corporation. Such suit of the purchaser was decreed on
26.2.2009. The decree in the said suit was affirmed by the High Court
on 11.8.2007. The purchaser from the Corporation filed an application
under Order VII Rule 11 for rejection of the plaint of OS No. 138 of
2008. Such application was dismissed by the learned trial court. The
order was affirmed in revision by the High Court holding that the
ground of res judicata could not be decided merely by looking
averments in the plaint. It is the said order which became subject
matter of challenge before this Court. This Court found that the plea of
res judicata requires consideration of the pleadings, issues and
decision in the previous suit and such a plea would be beyond the
scope of Order VII Rule 11. However, in the operative paragraph, it
was observed that the trial court shall consider whether a preliminary
issue should be framed under Order XIV, and if so, to decide it within a
period of three months of raising the preliminary issue. The operative
part of the order reads thus:
17 For short, the ‘Corporation’
18
“28. For the above reasons, we hold that the plaint was not
liable to be rejected under Order 7 Rule 11(d) and affirm the
findings of the trial court and the High Court. We clarify however,
that we have expressed no opinion on whether the subsequent
suit is barred by the principles of res judicata. We grant liberty to
the appellant, who claims as an assignee of the bona fide
purchaser of the suit property in an auction conducted by KSFC,
to raise an issue of the maintainability of the suit before the
Additional Civil Judge, Belgaum in OS No. 138 of 2008. The
Additional Civil Judge, Belgaum shall consider whether a
preliminary issue should be framed under Order 14, and if so,
decide it within a period of 3 months of raising the preliminary
issue. In any event, the suit shall be finally adjudicated upon
within the outer limit of 31-3-2022.”
27. This Court was thus examining the scope of Order VII Rule 11 of the
Code, whereas such is not the issue in the present appeal. In fact, the
defendant has filed an application for framing of preliminary issues.
The direction of the High Court is on such application. Therefore, such
application needs to be considered in the light of the provisions of
Order XIV Rule 2 of the Code.
28. In Jamia Masjid, the judgment and decree in a second appeal holding
that the suit is barred by the principle of res judicata was the subject
matter of challenge before this Court. The learned trial court decided
Issue Nos. 5 and 6 related to res judicata and limitation as preliminary
issue. It was held that suit was not barred by limitation but barred by
res judicata. In appeal, such finding was affirmed. However, in second
appeal, the matter was remanded to the trial court for disposal of the
suit in accordance with law holding that the suit is not barred by res
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judicata. In appeal against such judgment and decree, appeal was
remanded to the High Court. The High Court after remand held that the
judgment in a representative suit under Section 92 of the Code binds
the parties to the suit and would thus operate as res judicata.
29. In appeal before this Court, it was considered whether res judicata
raises a mixed question of law and facts. The Court held as under:
“26. The court while undertaking an analysis of the applicability
of the plea of res judicata determines first, if the requirements of
section 11 CPC are fulfilled; and if this is answered in the
affirmative, it will have to be determined if there has been any
material alteration in law or facts since the first suit was decreed
as a result of which the principle of res judicata would be
inapplicable. We are unable to accept the submission of the
appellants that res judicata can never be decided as a
preliminary issue. In certain cases, particularly when a mixed
question of law or fact is raised, the issue should await a fullfledged trial after evidence is adduced. In the present case, a
determination of the components of res judicata turns on the
pleadings and judgments in the earlier suits which have been
brought on the record. The issue has been argued on that basis
before the Trial court and the first appellate court; followed by
two rounds of proceedings before the High Court (the second
following upon an order of remand by this court on the ground
that all parties were not heard). All the documentary material
necessary to decide the issue is before the court and arguments
have been addressed by the contesting sides fully on that basis.
xx xx xx
62. In view of the discussion above, we summarise our findings
below:
(i) Issues that arise in a subsequent suit may either be questions
of fact or of law or mixed questions of law and fact. An alteration
in the circumstances after the decision in the first suit, will
require a trial for the determination of the plea of res judicata if
there arises a new fact which has to be proved. However, the
plea of res judicata may in an appropriate case be determined as
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a preliminary issue when neither a disputed question of fact nor
a mixed question of law or fact has to be adjudicated for
resolving it;”
30. A perusal of the said judgment would show that only issue Nos. 5 and 6
were decided relating to res judicata and limitation as preliminary
issues by judgment dated 3.2.2006. This Court set aside the finding on
the preliminary issue by judgment dated 23.9.2021 i.e., almost more
than 15 years later when the matter was remanded back to the trial
court. The absence of the decision on all issues have necessitated the
matter to be remanded back, defeating the object of expeditious
disposal of lis between the parties. The conclusion in Para 62(i) is that
the plea of res judicata in appropriate cases may be determined as
preliminary issue when it is neither a disputed question of fact nor a
mixed question of law and fact. Such finding is what this Court held in
Ramesh B. Desai.
31. We find that the order of the High Court to direct the learned trial court
to frame preliminary issue on the issue of res judicata is not desirable
to ensure speedy disposal of the lis between parties. Order XIV Rule 2
of the Code had salutary object in mind that mandates the Court to
pronounce judgments on all issues subject to the provisions of sub-Rule
(2). However, in case where the issues of both law and 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 suit
first, if it relates to jurisdiction of the Court or a bar to the suit created
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by any law for the time being in force. It is only in those circumstances
that the findings on other issues can be deferred. It is not disputed
that res judicata is a mixed question of law and fact depending upon
the pleadings of the parties, the parties to the suit etc. It is not a plea
in law alone or which bars the jurisdiction of the Court or is a statutory
bar under clause (b) of sub-Rule (2).
32. The objective of the provisions of Order XLI Rules 24 and 25 is that if
evidence is recorded by the learned Trial Court on all the issues, it
would facilitate the first Appellate Court to decide the questions of fact
even by reformulating the issues. It is only when the first Appellate
Court finds that there is no evidence led by the parties, the first
Appellate Court can call upon the parties to lead evidence on such
additional issues, either before the Appellate Court or before the Trial
Court. All such provisions of law and the amendments are to ensure
one objective i.e., early finality to the lis between the parties.
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.
34. Therefore, the order of the High Court remanding the matter to the
learned trial court to frame preliminary issues runs counter to the
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mandate of Order XIV Rule 2 of the Code and thus, not sustainable in
law. The learned trial court shall record findings on all the issues so
that the first appellate court has the advantage of the findings so
recorded and to obliviate the possibility of remand if the suit is decided
only on the preliminary issue.
35. Consequently, the appeal is allowed. The order passed by the High
Court is hereby set aside.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(V. RAMASUBRAMANIAN)
NEW DELHI;
MAY 06, 2022.
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