Kerala High Court
Femina Handloom Of India, ... vs M.R. Verma & Sons on 19 August, 1992
The suit is for realisation of the amount due from the defendant being the price of 2000 metres of cotton handloom "oxford fabric" variety sold by the plaintiff to the defendant. In the plaint the plaintiff alleged that the defendant offered to purchase cotton handloom fabric at the rate of Rs.. 13/-per metre and this offer was accepted by the plaintiff. The plaintiff later informed the defendant that she would be despatching the goods through Sharma bus, a common carrier. The goods were delivered through the common carrier and it reached the defendant's warehouse on 23-10-84. Plaintiff later sent invoice demanding Rupees 27,275.30 being the value of the goods despatched. Defendant postponed the payment under some pretext or other and ultimately the plaintiff filed the suit.
3. In the plaint the plaintiff alleged that the goods were delivered to Sharma bus from Kannur. So part of the cause of action arose at Kannur and therefore the suit was maintainable in the court below. The defendant filed written statement wherein they disputed the liability to pay the amount. The defendant contended that they had not accepted fhe proposal made by the plaintiff and that they never instructed the plaintiff to send the goods through Sharma bus. The defendant contended that there was delay in despatch of goods and hence the article was rejected. In paragraph 3 of the written statement the defendant contended that the agreement was executed at Bombay and no part of cause of action arose within the jurisdiction of the Court in Thalasserry and therefore the trial Court had no jurisdiction.
4. In the trial Court seven issues were framed and by judgment dated 30-1-89 the Court held that the plaintiff was entitled to recover Rs. 27,275.30 being the value of the goods supplied by him. But under issue No. 2 the court held that the cause of action for the suit arose at Bombay and the courts at Kannur have no territorial jurisdiction. On that premises the plaint was ordered to be returned to the plaintiff for presentation before proper court. This finding is challenged by the plaintiff.
5. At the outset I may observe that the court should have tried issue No. 2 as a preliminary issue. When the defendant contended that the Court has no territorial jurisdiction to try the case and an issue is framed regarding jurisdiction, for the convenience of the parties the same should have been tried as a preliminary issue and if the court finds that it has no jurisdiction, the plaintiff can very well proceed this litigation in the proper court. The finding regarding jurisdiction at the final stage would only cause undue hardship to parties. The provision contained in Order XIV, Rule 2(2) of the C.P.C also is relevant, where it is stated :
"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) xx xx xx."
In this case the court should have decided the question of jurisdiction on the basis of the relevant provisions, which I shall deal with presently.
6. In the plaint there is a specific allegation to the effect that the defendant placed orders for purchase of goods from the plaintiff and the goods were delivered from Kannur to Bombay through Sharma bus. This aspect of the case was not specifically denied in the written statement. The defendant only contended that the contract was concluded at Bombay and therefore the courts in Kannur had no jurisdiction. The fact that the defendant purchased the goods from the plaintiff and that the goods were delivered from Kannur through a common carrier is not denied and the evidence adduced in this case also would show that the defendant sent the goods through a common carrier and It reached the godown of the defendant and they kept it there.
7. Under Section 20 of the C.P.C. it is stated that every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. Clause (c) says that the plaintiff can file the suit in a court within the local limits of whose jurisdiction the cause of action wholly or in part has arisen. An illustration given to Section 20 is to the following effect:
"(a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business."
From the above illustration it is clear that the plaintiff herein, who sent the goods to the defendant pursuant to an order placed by the defendant to send the goods, is entitled to maintain a suit in the court at the place where he had despatched the goods to the purchaser. From the illustration, it is clear that the plaintiff in this case was perfectly justified in filing the suit in the court at Thalassery. Illustration (a) to Section 20 is squarely applicable to the facts of the case, especially when the defendant has not denied the fact that they had placed orders and that the goods were sent by a common carrier from Kannur to Bombay.
Allahabad High Court
The Manager, Bettiah Estate vs Sri Bhagwati Saran Singh And ... on 27 March, 1992
Supreme Court in the case of S. Khanna v. Brig. F. J. Dillon while interpreting the said rule expressed itself in these words:--
"Under O. XIV R. 2 of Civil P.C. 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 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 issues of law have been determined. The jurisdiction of the Court 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 depends upon the decision of issues of fact, would result in a lop sided trial of the suit."
7. In view of the language employed in R. 2 before 1976 amendment all issues of law going to the root of the case and capable of being decided without the necessity of recording evidence were mandated to be tried by the court first. Even where the decision of issue of law obviated the adducing of evidence by the parties the Court was bound to deal with that issue in the first instance. On the then existing provisions the consistant view expressed by the Court was that where questions only of law or law mixed with facts arise in a case and the decision thereof, in the opinion of the Court may result in the disposal of the suit itself, the same ought to be decided first. But when the pure question of law is raised but its decision was not likely to result in the disposal of the suit it was not necessary to decide such an issue as preliminary one and must await the stage of final decision. Similarly where the question of law raised was such which is mixed with fact and on those facts independent issues have been raised for trial, the decision of such issue must necessarily be postponed for final decision.
8. It appears that in view of the decision of the Supreme Court in the case of S. S. Khanna the Parliament thought it fit to bring it in line with the views expressed by the Supreme Court. Accordingly R. 2 was re-cast as under:--
"2. Court to pronounce judgment 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 the judgment on all issues.
(ii) Where issues both of 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 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 other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
9. From the perusal of the amended provision of Rule 2 it will be clearly seen that now there are only two categories of issues which can be decided as preliminary issues.
Those issues of law as relate to (a) jurisdiction, of the Court or (b) to the bar to the suit created by any law for the time being in force. Apart from the above no other issue can now be decided as preliminary, a fortiori no issue of fact or a mixed issue of fact and law can be, decided as preliminary issue and consequently such issues must be left to be decided along with the rest of the issues. The object of this obviously is avoidance of piecemeal trial and abridging protracted litigation.
10. On comparison of the earlier rule and the present one will indicate that previously the categorisation was between issue of law and fact only and it was mandatory for the court to decide all issues of law in the first instance. On the contrary under the amended rule the mandate to the Court is to pronounce the judgment on all the issues raised subject to the provision of sub-rule (2), notwithstanding the fact that the disposal of one preliminary issue may result in the disposal of the whole suit. The only exception carved out by sub-rule (2) is to confer discretion upon the Court that it may dispose of an issue of law as a preliminary issue if, in its opinion, it can dispose of the whole suit subject to further limitation that the issue of law must either be as to the jurisdiction of the Court or as to the bar of any law to the suit. The use of expression "on issue of law only" has its own significance which cannot be ignored. Amended provision has thus drastically changed the earlier notion that all issues of law have to be disposed of at the initial stage-before the trial. Now the Courts power to dispose of an issue of law as preliminary issue has been considerably restricted.
11. The rule however, does not give any arbitrary or unbridled power to the Court. The discretion in this regard has to be exercised in a judicious manner. In fact the discretion to try a preliminary issue of law relating to jurisdiction or bar to the suit should be exercised only when it is so clear that the decision will dispose of the suit finally and once for all without the necessity of recording any evidence. If there be any necessity to refer to any authority on the question it will suffice to mention AIR 1980 Delhi, 122, Oriental Travels Pvt. Ltd. v. State Transport Authority and AIR 1979 MP 153.
12. To sum up the legal position appears to us to be as under:
Only an issue of law can be decided as a preliminary only where it is such that its decision does not necessitate investigation into facts and it relates either to the jurisdiction of the Court or to the suit being barred under any prevailing law, and that, in the opinion of the court the decision of the issue will, result in the decision of the whole or a part of the suit. The discretion in this regard must always be exercised on the basis of sound judicial principles. It may however, be made clear that even if an issue of law can be decided as a preliminary issue as aforesaid the Court is not always bound to decide it as a preliminary issue and can in its discretion, postpone its decision also along with other issues whether of law or fact. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof.
Gujarat High Court
State Of Gujarat vs Jaipalsingh Jaswantsingh ... on 20 December, 1993
It is indeed a matter of common knowledge that whenever any party asserts its right, and pursuant thereto claims any enforcement of reliefs which is seriously disputed by the other side, then, obviously the burden to establish the same by leading the evidence is on the party asserting such rights. The Civil Procedure Code and the law of evidence are clear enough on the point to tell us that when facts are in dispute, the trial Court in the first instance is bound to frame the issues of facts and/or of law (as the case may be) as warranted under Order XIV. Rule 1 of the Civil Procedure Code, 1908. Such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the opponent an opportunity to confront and contradict the particular witness and thereafter to lead the evidence (if he so desires) to bring home the defence pleaded and in the third instance, enlighten the trial Court to test and appreciate the same in proper perspective to enable it to reach just decision. It is hardly required to be told that issues are back-bone of a suit. They are also the lamppost which enlightens the parties to the proceedings, the trial Court and even the appellate Court - as to what is the controversy, what is evidence and where lies the way to truth and justice. Further framing of issues is absolutely essential to a right decision of the case and therefore this bounden duty of framing of issues primarily rests on the trial Court.
Supreme Court of India
Nagubai Ammal & Others vs B. Shama Rao & Others on 26 April, 1956
The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar v. Chaudhri Narpat Singh: Rani Chandra Kunwar v. Rajah Makund Singh((2) [1906-07] L.R. 34 I A. 27.). There, the defendants put forward at the time of trial a contention that the plaintiff had been given away in adoption, and was in consequence not entitled to inherit. No such plea was taken in the written statement; nor was any issue framed thereon. Before the Privy Council, the contention was raised on behalf of the plaintiff that in view of the pleadings, the question of adoption was not open to the defendants. It was held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the question of adoption, and as the plaintiff had not been taken by surprise, the plea as to adoption was open to the defendants, and indeed, the defendants succeeded on that very issue. This objection must accordingly be overruled.
Supreme Court of India
Nedunuri Kameswaramma vs Sampati Subba Rao on 17 April, 1962
No doubt, no issue was framed, and the one, which was framed, could have been more elaborate ; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer.