ORDER
1. In these revision petitions, this court ordered notice of motion to the contesting respondent.
2. Heard Mr.T.Arulraj, learned counsel appearing for the petitioners and Mr.M.S.Krishan, learned counsel appearing for the contesting respondent.
3. As identical questions have been raised, these two revision petitions are disposed by this common order.
4. It is fairly stated by the counsel on either side that the points that are raised for consideration are identical in both the revision petitions. For the purpose of appreciating the contention, it is not essential to set out the factual matrix in detail in both the revision petitions.
5. C.R.P.No. 3054 of 1998 has been filed challenging the fair and decretal order dated 2.9.1998 made in I.A.No. 612 of 1998 in O.S.No. 222 of 1996 on the file of the Subordinate Judge, Uthagamandalam. Nilgiris District, whereby the court below rejected the application to take out the jurisdictional issue as the preliminary issue. Admittedly the suits have been instituted during the year 1990 and the written statement has been filed during the year 1991. The Interlocutory Application has been taken out on 13.4.1998 after examination of witnesses. The application has been taken out to decide the jurisdictional issue as preliminary issue.
6. C.R.P.No. 3055 of 1998 has been filed challenging the fair and decretal order dated 2.9.1998 made in I.A.No. 613 of 1998 in O.S.No. 17 of 1998 by which the request to decide the jurisdictional issue as a preliminary issue, had been rejected. This suit also came to be instituted in the year 1990 and the written statement has been filed in the year 1991. However the suit has been transferred to the file of the Sub-court, Uthagamandalam, to be tried jointly along with O.S.No.222 of 1996. In this suit also the evidence has been recorded and at that stage, application has been filed.
7. Mr.T. Arulraj, learned counsel appearing for the petitioner took the court through the pleadings as well as the depositions of witnesses and contended that no part of cause of action had arisen within the jurisdiction of the court below, that the suit property is located at Bangalore, and the defendant is a permanent resident of Madras and therefore, the court below is bound to decide the jurisdictional issue as the preliminary issue. The court below had considered both the applications and held that the applications are not maintainable and dismissed as belated, besides devoid of merits. As regards of question of jurisdiction, it is to be pointed out that according to the plaint averments, the cause of action arose within the jurisdiction of the court below. Any question relating to jurisdictional issue should have been raised at the earliest opportunity. The issue relating to the jurisdiction of the court, when it is a mixed question of law and fact, there is difficulty to decide the issue as preliminary issue. If it is purely a question of law, the trial court could take out the application on the basis of the preliminary issue. In the present case, the plaint averments would show that the cause of action for the suit arose at Uthagamandalam and Coonoor, as the case may be, within the jurisdiction of the court below. It may be that the defendant is the resident of Madras and that the property with respect to which the agreement is sought to be enforced is at Bangalore. In the other suit, the plaintiff had sought for recovery of original documents, entrusted to the defendant, after cancellation of the power of attorney and declaration that the power of attorney had already been terminated as the plaintiff is the resident of Coonoor. According to the
plaint averments, entire contact had been concluded at Coonoor and this aspect is disputed by the defendant-petitioner. This controversy has to be decided only on the basis of the evidence, as there is assertion and counter assertion in this respect.
8. Both the suits are of the year 1990 and in both the suits written statements have been filed and the trial is already over as the evidence of both sides have been recorded. At this stage, the present application has been taken out to decide the jurisdictional issue as preliminary issue. In my view, the court below had rightly rejected the application as belated and legally it cannot be entertained, besides holding that it is a mixed question of law and fact which could be decided at the time of trial.
9. Mr.T. Arulraj, learned counsel appearing on behalf of the petitioners though strained himself and referred to a portion of the depositions as well as the pleadings, it is to be pointed out that a decision could be arrived at by the court below only at that time when the other issues are being considered and the judgment is rendered on merits, as the jurisdictional issue is a mixed question of law and fact.
10. Mr.M.S. Krishnan, learned counsel appearing for the respondent relied upon a number of binding authorities of this court as well as the Supreme Court. It may not be necessary to refer all of the, In S.S. Khanna v. F.J. Dillon, the Supreme Court while considering the scope of Order 14 Rule 2 CPC held thus:
“All these contentions raised substantial issues of fact which had to be decided on evidence, and Dillon could not be non- suited on the assumption that the pleas raised were correct. At the threshold of the trial two problems had to be faced:
(1) Whether in a suit to enforce an agreement to repay an amount advanced in consideration of a promise to repay the same, in question as to ownership of the fund out of which the amount was advanced is material; and
(2) If the answer is in the affirmative, whether the fund in fact belonged jointly to Dillon and Khanna.
The Judge of the court of first instance unfortunately assumed without a trial an affirmative answer to both these questions. 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
depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.”
11. In N. Dhanalakshmi and others v. S. Eknathan, Proprietor Eknath Real Estates, 1998 (I) MLJ 132 the Division Bench of this court, had occasion to consider the very same aspect and held thus:
“The learned single Judge in the order under appeal, in the penultimate paragraph, has stated that even the issue regarding jurisdiction can be decided along with the other issues as the suit itself, is ready for trial, and there is no need to try the issue regarding jurisdiction as a preliminary issue. In paragraph 10 of the plaint, it is averred that the entire suit transaction was discussed and concluded at Madras during June 1990 and October, 1990. On the 7th October, 1990 an agreement was entered into, executed, and signed at Madras by the parties. In paragraph 9 of the written statement the defendants have specifically denied that the suit transaction was discussed and concluded at Madras and that the agreement was executed at Madras. This being the position, in our view, the learned Judge was right in stating that the issue as to jurisdiction could be decided along with other, issues in the suit when the suit is ready for trial, particularly so when even the said issue may require oral evidence in the light of the pleadings of the parties. Added to this, the defendants did not file application to try issue No. 1 as a preliminary issue immediately after the issues were framed. They came forward with an application to try issue No.1 as a preliminary issue relating to the jurisdiction only when the suit was set for trial.”
12. Raju, J. as he then was, who had occasion to consider the identical question in M. Sadaksharavel v. State Bank of India, Coimbatore, after considering the entire case law held thus:
“I have carefully considered the submissions of the learned counsel appearing on either side on the correctness or otherwise of the claim as also the need for determining the issues sought to be adjudicated as preliminary issues. The court below had chosen to reject the claim mainly, rather on the only ground that the adjudication of the issues sought to be tried and decided as a preliminary issue would also require oral and documentary evidence and that therefore, there was no justification in the plea on behalf of the petitioner to have the two issues raised tried as preliminary issues. In my view, after the amendment to the provisions contained in Rule 2 of the Order 14 by the substitution of a new rule in the place of the old Rule 2, the disposal of a claim made in the suit should be by pronouncing a judgment on all issues. Notwithstanding the fact that the case may be disposed of on a preliminary issue also. The exception carved out is only in respect of the issues visualised and specified under Sub-Rule (2) of the Rule 2 of Order 14. The learned counsel for the petitioner contended that the restriction or embargo placed under Rule 2 of Order 14 could be applicable only in respect of where the case itself would be disposed of and not in respect of cases where such a result would not follow as an unsuitable consequence upon the result of the main case itself. Though attractive the submission may appear to be, in my view, the same cannot withstand a close scrutiny and consideration. Accepting such a proposition would mean that in all cases where the adjudication of an issue may not result in the ultimate disposal of the claim or the case itself, the court can
decide the issues as it likes or it suits the court. That in my view, could not be the object of the provisions contained in the Order 14, Rule 2 and an interpretation of that type, if countenanced, would defeat the very object of the amendment itself. The explanation carved out in Sub-Rule(2) of Rule 2 of Order 14 is only in respect of cases, where the issues are merely issues of law simpliciter and upon the decision of which the case or a part thereof may be disposed of and that too when it relates only to the jurisdiction of the court or in respect of a bar to the suit created by any law for the time being in force. Having regard to the nature of issues involved in this case which are sought to be got adjudicated as preliminary issues, it cannot be contended that the same could be decided merely as legal issues or issues of law only without the necessary factual basis or evidence in support or aid of the same. The questions involved particularly the plea of limitation could be only mixed question of fact and law and not merely an issue of law. The other issue relating to the legality and the propriety of the sale of the shares for gross under value is concerned, unless the necessary facts relating to the market value etc., are brought on record, there is no scope for deciding such an issue and therefore permitting a partial trial in respect of the two issues only at this stage resulting in the court undertaking a perfunctory exercise of power, may even lead to, as the Supreme Court is pleased to put it, a lopsided trial of the suit, and consequent miscarriage of Justice.”
The above authorities are binding and it is not necessary to refer to any further authority or precedent.
13. As already pointed out that the suits are of the year 1990 and the written statements have been filed in the year 1991, trial has commenced and in fact the examination of the witnesses has also been completed. At this stage, this application has been filed. It may be that the application is maintainable, but it is for the courts to decide the jurisdictional issue, which is a mixed question of law and fact and such an issue is not required to be answered as preliminary issue and at any rate at this belated stage. There is no escape as the petitioner had slept over the matter, taken part in the proceedings before the court below and allowed the recording of the evidence and thereafter had taken out the application. No useful purpose will be served to try the jurisdictional issue as preliminary issue at this belated stage, as the trial of the suits have already been completed. Further preliminary issue had to be decided on the basis of the pleadings, documents and oral evidence, as it is mixed question of law and facts along with other issues as well.
14. Under the circumstances, no case has been made out for the interference in both the revision petitions and hence they are dismissed. The order passed by the court below is not vitiated nor the order suffers with material irregularity or illegality. Both the revision petitions fail and are dismissed. Consequently, CMP.Nos. 15289 and 15290 of 1998 are also dismissed. No costs.