JUDGMENT
M.M. Kumar, J.
1. This is a revision petition challenging the order dated 22.1,1999 passed by the Civil Judge (Junior Division), Ludhiana dismissing the application of the plaintiff-petitioner for review of order dated 5.5.1995. By the order dated 5.5.1995 it has been decided that issues with regard to limitation, maintainability court fee and res judicata shall be treated as preliminary issues -out of a number of issues framed by the trial Court. The case was fixed for evidence on those preliminary issues.
2. The facts necessary for deciding the controversy raised in this revision petition are that the plaintiff-petitioner filed Civil Suit No. 88 on 22.9.1990 for separate possession by way of partition of the property. One of the plea set up by the plaintiff-petitioner before the Trial Court is that the suit property was owned and possessed by Shri Narain Singh son of Shri Thaman Singh and the sale deed executed by defendant-respondent No.1 (since deceased) in favour of defendant-respondent Nos.13 to 22 is illegal and of no legal consequences in so far as the rights of the plaintiff-petitioner are concerned. The suit was contested by the defendant-respondents by filing the written statement. The trial Court framed the issues on 5.5.1995 in presence of both the parties and ordered that issue Nos. 1, 2, 3 and 16 concerning limitation, maintainability, court fee and res judicata be treated as preliminary issues.
3. The plaintiff-petitioner filed an application on 31.5.1995 seeking review of the order dated 5.5.1995 by urging that the aforementioned order was patently against the law because only those issues could be treated and decided as preliminary issues where no evidence was required to be led, it was further urged that the trial Court having fixed the case for evidence on the preliminary issues which fact itself would be sufficient to show that under Order 14, Rule 2 of the Code of Civil Procedure (for brevity, ‘the Code’), the issues cannot be treated and decided as preliminary issues. The application was contested by the defendant-respondents controverting the stand taken by the plaintiff-petitioner. It was asserted that the suit on the basis of those issues which go to the root of the case could be decided as preliminary issues because that would save time of the Court.
4. The trial Court while dismissing the application filed under Order 47, Rule 1 of the Code passed the impugned order which reads as under-
“The learned counsel for the plaintiff has argued that recording of evidence is required to decide the preliminary issues so the issues relating to limitation, maintainability, court fee and res judicata cannot be treated as preliminary issues. In favour of his contention he has relied upon Smt. Ram Kali and Anr. v. Sohan Lal, A.I.R. 1984 P&H 124 wherein it was held that issues of law requiring evidence to be recorded can not be tried as preliminary issues. Trial of res judicata is preliminary issue was held erroneous.
On the other hand, the learned counsel for the defendant has argued that order dated 5.5.1995 can not be reviewed by the Court as there is no error apparent on the face of record and court can not review its order only the application for review lies in Hon’ble Court, in case, plaintiff feels aggrieved from the orders. The counsel has drawn my attention to order 47 Rule 1 CPC wherein it was laid down “Application for review of judgment-Any person considering himself aggrieved.
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
b) by a decree or order from which no appeal is allowed, or
c) by a decision on a preference from the court of small causes, and who from the discovery of new and important matter or evidence, which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of mistake or error apparent on the fact of the record or for any other sufficient reason, desires to obtain a review for the decree passed or order made against him may apply for a review of judgment to the court which passed the decree or made the order. .
5. In view of their contention the counsel have relied upon Meera Bhanja v. Smt. Nirmala Kumari Choudary, A.I.R. 1995 S.C. 455 wherein it was held that
“It is well settled law that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of order 47, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, A.I.R. 1979 S.C. 1047, speaking through Chinnappa Reddy, J. has made the following pertinent observations (para 3);
“It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be in the province of a court of appeal, A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of error committed by the Subordinate Court.”
The learned counsel for the defendant has further argued that the issues regarding limitation and res judicata can be treated as preliminary issue as these goes to the root of the case and it will further safe and save precious time of the Court. In favour of his contention, he has relied upon Meharban and Ors. v. Punjab Wakf Board, (1998-2)119 P.L.R. 466 wherein it was held that if the court is of the opinion that the case or part thereof may be disposed of on an issue of law only it may try that issue first if that issue related to either jurisdiction of the court or a bar to the suit created by any law for the time being in force. It has further laid down that since of Res judicata can be treated at preliminary issue under Order 14 Rule 2 Clause 2 even if it involves production of evidence by the parties. It was further held in Rajesh Kunar v. Ghoulu Ram, (1999-1)121 P.L.R. 653 that question as to whether the suit is maintainable in the present form is an issue of law and it goes to the root of the matter and where case can be disposed of by issues of law and it may not be necessary to take evidence on any other issues-Trial Court treating it as preliminary issues-order upheld.
In the present case also the only contention of the learned counsel for the plaintiff is that issues on which evidence is required cannot be treated as preliminary issue. But this contention of the learned counsel is rebutted by the law laid down in Meharban and Ors. as discussed above. Further this Court cannot review the order passed by its predecessor as there is no error apparent on the face of the record which is also explained in the taw laid down above in the Meera Bhanja Case. Further the issues were very much framed in the present case in the presence of both the parties and after hearing them. The learned counsel should have raised this plea at that time which he had not done nor he has preferred any review against that order.
As such, I find no error apparent on the face of the order and I find no justification in reviewing the order passed by my predecessor.
As such, in view of the above discussion and law laid down, application is declined and the same is hereby dismissed.
6. I have heard Sh G.S. Bhatia, learned counsel for the plaintiff-petitioner and Sh. O.P. Goyal, Senior Advocate for respondent No.23 and Sh. J.K. Sibal, Senior Advocate for respondent No.26 and have perused the record with their assistance.
7. Shri G.S. Bhatia, learned counsel for the plaintiff-petitioner has made three submissions. His first contention is that the object of adding Rule 2 to Order 14 by amendment of 1976 in the Code is that it is mandatory for the Court to pronounce the judgment on all the issues, The only exception incorporated in Sub-rule (2) is that if the Court is of the opinion that the suit or any part thereof may be disposed of on an issue of law only, it may try that issue first as preliminary issue. According to the learned Counsel, the exercise of this discretion by the court is limited if it reaches the conclusion that the issue to be so tried relates to the jurisdiction of the Court or the suit could be disposed of on an issue of law only. He has submitted that it would be an illegality in exercise of jurisdiction if the procedure envisaged under Order 14, Rule 2 of the Code is not followed. Therefore, the four issues directed to be tried as preliminary issues could not be treat2d as preliminary issues and the order dated 5.5.1995 being patently illegal was liable to be reviewed and the impugned order dismissing the application for review is thus liable to be set aside. His second submission is that the four issues ordered to be treated as preliminary issues are not issues of law only but they are at best mixed issues of law and facts. According to the learned counsel, mixed issues of law and facts cannot be treated as preliminary issues. For this proposition, he has placed reliance on the judgments of this Court in the case of Daljit Singh v. Joginder Singh Sekhon, A.I.R. 1985 Punjab and Haryana 184; Smt. Kam Kali and Anr. v. Sohan Lal, A.I.R. 1985 Punjab and Haryana 124; Sursati v. Bachan Singh and Ors., 1987 P.L.J. 329; Hardwari Lal v Pokhar Mat and Ors., (1978)80 P.L.R. 252; Major S.S. Khanna v. Brig. F.J. Dillon, (1964)66 P.L.R. 115 (SC) and a Full Bench judgment of Madhya Pradesh High Court delivered in the case of Ramdayal Umraomal v. Pannalal Jagannathji, A.I.R. 1979 Madhya Pradesh 153.
8. Another argument advanced by Sh. Bhatia is that the plaintiff-petitioner has filed a suit for possession by way of partition and there is no period of limitation prescribed for filing of such a suit and obviously such an issue cannot be treated as preliminary issue. According to the learned counsel, such a suit afresh suit and Anr. suit for a relief in the same form would also be maintainable. He has relied upon a judgment of Delhi High Court in S. Jaswamnt Singh (deceased by L.Rs.) v. S.Darshan Singh (deceased by LR.) and Ors., (1992-2)102 P.L.R. D. 29.
9. The third submission made by the learned counsel is that the Civil Judge has committed grave error in law by refusing to review the order dated 5.5.1995 on the ground that the review would not be competent because the decision was erroneous on merits and such a decision would fall within the purview of the appellate Court. For this proposition, he has placed reliance on various judgments, namely; Y. Venkannachowdary v. The Special Deputy Collector, Land Acquisition (General), Hyderabad District and Ors., A.I.R. 1981 Andhra Pradesh 232; Brahma Devi v. Vth ADJ, Etawah, 2000(1) Civil Court Cases 632; Hem Raj v. Harchet Singh and Ors., 1993 Civil Court Cases 48 (P&H) and Ajit Inder Singh v. Duldip Kaur, 1994(1) Civil Court Cases 680 (P&H).
10. Shri O.P. Goyal and Shri J.K.Sibal, learned counsel for the defendant-respondents have argued that the order dated 5.5.1995 has never been challenged before this Court and the argument of the plaintiff-petitioner challenging that order has to be ignored. According to the learned counsel, the aforementioned order is an order challenge-able under Section 115 of the Code and was a revisable order. Therefore, no review
could be filed. It has been further argued that the review could be filed only in cases where there is an error apparent on the face of record. For this proposition, reliance has been placed on a judgment of the Supreme Court in the case of Smt. Meera Bhanja v. Smi. Nirmala Kumari Choudhury, A.I.R. 1995 S.C. 455. This judgment has also been relied upon by the trial Court. They have also placed reliance on following judgments of this Court in Meharban v. Punjab Wakf Board, (1998-2)119 P.L.R. 466; Harinder Kumar v. Coromandal Fertilizers Ltd. 1998(3) Recent Civil Reports (Civil) 691. They further submitted that this revision petition is liable to be dismissed in view of the law laid down by the Supreme Court in the case of the Managing Direction (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Stores), Hindustan Aeronautics Ltd. Balanagar, Hyderbad, A.I.R. 1973 S.C. 76.
11. I have thoughtfully considered the submission made by learned counsel for the parties. In my considered opinion, the following two issues have been raised for consideration of the Court;
(i) Whether the power of review under Order 47, Rule 1 read with Section 115 of
the Code could be exercised merely because there is a legal error committed by the
court?
(ii) If answer to the first issue in ‘yes’ then can the issue concerning limitation,
maintainability, court fee and res judicata be treated as preliminary issues as has been
directed by order dated 5.5.1995?
12. The first question regarding the power of review has to be considered in view of the provisions of Order 47, Rule 1 of the Code which reads as under:-
“1. Application for review of judgment.- (1) Any person considering himself aggrieved;-
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
b) by a decree or order from which no appeal is allowed, or
c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or other made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation; The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]”
13. A perusal of the above provisions show that review of a judgment or an order could be sought; (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.
14. The afore mention provisions have been interpreted by the Apex Court in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors., A.I.R. 1979 S.C. 1047. In that case, the Supreme Court held that there are definite limits to the exercise
of power of review. There the orders dated 11.8.1961 and 13.6.1961 passed by the Chief Commissioner of Manipur were under challenge under Article 226 of the Constitution before the Judicial Commissioner, Manipur. The grievance made before the Judicial Commissioner was that the Chief Commissioner had permitted the ‘settlement’ of part of the public roads in such a manner that obstruction was caused to the petitioner and he was not allowed free access to the public road from the adjoining land belonging to him. The learned Judicial Commissioner allowed the writ petition on the ground that the settlement of land, which was part of public road was prohibited by the Manipur Land Revenue and Land Reforms Act, 1960 as well as Manipur Land Revenue and Land Reforms Act, 1950. Thereafter, an application under Order 47, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to the Supreme Court, their Lordships of the Supreme Court held as under;-
“The Judicial Commissioner gave two reasons for reviewing his predecessor’s order. The first was that his predecessor had overlooked two important documents Exhibits A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single Writ Petition, ‘settlement’, made in favour of the different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab, (A.I.R. 1963 S.C. 1909) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
In the present case both the grounds on which the review was allowed were hardly grounds for review. That two documents which were part of the record were not considered by the court at the time of issue of writ under Article 226, cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceeding under Article 226. Again, that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The Order of the Judicial Commissioner dated 7th December, 1967 is accordingly set aside and the order dated 25th May, 1965, it restored. The appeal is allowed but without costs.”
15. The aforementioned judgment of the Supreme Court has been followed in the case of Smt. Meera Bhanja (supra), In that case, it has been reiterated that an error apparent on face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations of the Supreme Court in connection with an error apparent on face of the record in the case of Satyanarayan Laxminarayan Hedge v. Mallikarjan Bhavanappa Tirumale, A.l.R. 1960 S.C. 137 were also
followed;-
“An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.”
16. It is also pertinent to mention the observations of the Supreme Court in the case of Parsion Devi and Ors. v. Sumitri Devi and Ors., (1997)8 S.C.C. 715. Relying upon the judgments in the cases of Aribam Tuleshwar Sharma (supra) and Smt. Meera Bhanja (Supra), their Lordships of the Supreme Court observed as under;-
“Under Order 47 Rule 1 CPC a judgment may be upon to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasons, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise.”
Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1, CPC. The observation of Sharma, J. that ‘accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided” and as such the case covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, “which had to be detected by a long-drawn process of reasons” and proceeded to set at naught the order of Gupta, J. However, mechanical use of staiutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment-debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a “review” of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997.”
17. If the principles enunciated in various judgments referred to above are applied to the facts of the case in hand, it becomes apparent that the order dated 5.5.1995 directing that issue Nos. 1,2,3 and 16 were to be treated as preliminary issues and the case was fixed for evidence cannot be said to suffer from an error apparent on the face of record. The argument that the case has been fixed for evidence on the preliminary issues would not be available because even to decide preliminary issues, some sort of formal evidence has to be led. The basic object of Rule 2 of Order 14 of the Code appears to be that only those issues should be treated and decided as preliminary issues which are issues of law alone as long as they lelate to the jurisdiction of the Court or arise out of a bar to the suit created by any law for the time being in force. In so far as leading of some formal evidence is concerned, I draw support from the judgment of this Court in the case of
Gian Chaand Jain v. His Highness Nawab Iftkhar Ali Khan. 1978 P.L.J. 382. Therefore, it cannot be said that in deciding the preliminary issues, no evidence at all has to be led. To my mind, if an issue regarding res judicata is framed, then evidence of earlier decision that the question raised in the subsequent suit was also directly and substantially an issue in the former suit between the parties, they or any one of the claim, may have to be decided by tendering in evidence a copy of the judgment rendered in the earlier suit. Leading of such a formal evidence would not be barred by the principle that no evidence is required to be led. However, if the detail evidence is required to be led as against the evidence of a formal nature, then such an issue cannot be treated and decided as a preliminary issue. The basic object of amendment made in 1976 was that the same evidence may not need be adduced twice firstly on preliminary issue. Then on the main issues resulting into huge delay in disposal of the suits. Therefore, I have no hesitation to hold that order dated 5.5.1995 could not be made subject matter of review and the Civil Judge has committed no error in dismissing the application of review.
18. If it is presumed for the sake of argument that the review was competent and the order dated 5.5.1995 should have been scrutinised in the light of the various judgment; providing that the issues which are issues of mixed questions of law and facts could be treated as preliminary issues, I am of the considered opinion that there is nothing on record which may indicate that the issues with regard to limitation, maintainability, court fee and res judicate are not the issues of law. A Constitution Bench of the Supremt Court in the case of Pandureng Dhondi Chougiile and Ors. v. Maruti Hari Jadhav and others, A.I.R. 1966 S.C. 153 has held that the issue concerning res judicata is an issues of law and, therefore, there is no impediment in treating and deciding such an issue as preliminary issue. Relying on the aforementioned judgment of the Constitution Bench this Court has taken the view in the cases of Meharban v. Punjab Walkf Board (supra and Harinder Kumar (supra) that such like issues can be treated and decided as issues o law under Order 14, Rule 2(2) of the Code. Similarly, the other issues concerning limitation, maintainability and court fee could always be treated as preliminary issues as no detail evidence is required to be led. Evidence of a formal nature even with regard to preliminary issues has to be led because these issues would either create a bar in accordance with law in force or they are jurisdictional issues. Therefore, even on merits, J have no hesitation in holding that the order dated 5.5.1995 does not suffer from any legal infirmity.
19. For the reasons recorded above, this revision petition fails and is dismissed. No
order as to costs.