S.B. Mhase, J.
1. Heard Shri Pendharkar, the learned Counsel for the applicant. No one appears for the non-applicant.
2. The order under challenge is dated 8th February, 1994 passed by the 4th Joint Civil Judge, Junior Division Nagpur, below Exhibit 9 from Regular Civil Suit No. 2148 of 1986 by which the request was made by the present applicant/defendant to try and decide the issues of tenability of the suit and the jurisdiction of the Court as preliminary issues. It appears, from the order that Issue Nos. 17 to 20 at Exhibit 17 were proposed to the Trial Court to be considered as preliminary issues. Those issues are as follows :
Issue No. 17 : Whether this Court has jurisdiction?
Issue No. 18 : Whether the plaintiffs suit is barred by the principles of res judicata?
Issue No. 19 : Does plaintiff prove that the plaintiff is estopped from challenging the order in view of his conduct and the record?
Issue No. 20 : Whether the plaintiffs suit is barred by limitation?
3. The learned Counsel appearing for the applicant submitted that these issues are the issues of law and which, if decided as preliminary issues, will result into disposal of the total suit and, therefore, the Trial Court was under obligation and/or duty to try these issues as preliminary issues. The learned Counsel submitted that the issue of jurisdiction is required to be considered in the light of fact that the plaintiff/non-applicant is a workman and, therefore, the provisions of the Industrial Disputes Act are applicable. The plea raised in the written statement is to the effect that the plaintiffs nature of duties as a Junior Storage Superintendent were manual and clerical and the salary under suspension, which he was drawing was Rs. 503.20 and the normal salary of the post of Junior Storage Superintendent at the relevant time was Rs. 1022.10 and thus the relationship between the plaintiff and the defendant is governed by the special legislation, namely the Industrial Disputes Act, 1947 and, therefore, the Court had no jurisdiction. The plea has been raised in paragraph 22 of the written statement of the defendant that the cause of action has not arisen within the jurisdiction of the Court at Nagpur, because the plaintiff was working at Wardha at the time of serving the dismissal order and, therefore, the territorial jurisdiction is not with the Court at Nagpur.
4. So far as the issue in respect of resjudcata is concerned, the plea has been raised in paragraph 2 of the written statement, wherein, it has been stated that the orders of suspension and reversion were passed on 17.7.1980 and 4.2.1981 and for reinstatement and quashing the said orders, the proceedings under the Bombay Industrial Relations Act, 1946 were initiated by the plaintiff/non-applicant. However, it is stated that the Industrial Court upheld the objection raised by the present applicant that the application under the provisions of the Bombay Industrial Relations Act, 1946 is not maintainable, as the said Court had no jurisdiction. It is further contended that thereafter Writ Petition No. 470 of 1984 was filed, challenging the orders of suspension and reversion, which came to be withdrawn by the non-applicant/plaintiff. On the basis of this contention, the plea has been raised that the present subject-matter is barred by principles of res judicata.
4A. So far as issue No. 20 is concerned, the bar of limitation is being claimed on the ground that the orders were passed suspending and effecting the reversion on 17.7.1980 and 4.2.1981 and, therefore, the suit, which has been filed, challenging the said orders, is barred by the principles of limitation.
4B. So far as issue No. 19 is concerned, the learned Counsel tried to make the submission that this issue can be tried as a preliminary issue, but has ultimately given up the said submission in respect of issue No. 19, as it requires investigation into facts, conduct and evidence so as to decide the said issue No. 19.
5. In order to support the contentions, the learned Counsel submitted that whenever the issue of law arises, upon which the suit can be disposed of partly, fully or wholly, the Court is under an obligation to consider that issue and dispose of the matter. The whole controversy, in the absence of the non-applicant/plaintiff, which was put up by the learned Counsel for the applicant/defendant, was that whenever the investigation into facts is required or the leading of evidence is must for deciding the issue, then whether the Court is under obligation to consider that issue as a preliminary issue. The learned Counsel, therefore, tried to persuade me and submit that even the issues of fact or mixed question of fact and law can be decided as preliminary issues in order to save the public time and money by shortly disposing of the matter on preliminary issues. The learned Counsel, relying upon the decisions in the matters of Smt. Laxmi Mani Dasi v. Manik Chandra Das : (1990)2CALLT277(HC) ; Praduman Kumar v. Girdhari Singh and Ors. ; Lalmohan Srivastava v. Ravi Co-operative Housing Society Limited at Bakaram, Hyderabad : AIR1982AP295 Dilip Singh v. Malam Singh and Anr. : AIR1986MP270 and General Manager, Haji Latif Gani Bidi Manufacturers, Nagpur and Anr. v. Abdul Rashid and Anr. : (1963)IILLJ257Bom tried to submit that whenever the issues pertaining to the jurisdiction of the Court and that of bar of any law to entertain the suit are being raised, the Court is under obligation to consider those issues as preliminary issues. The ratio of these cases will be considered and discussed in the later part of the judgment.
6. The learned Counsel was confronted with the judgment of this Court in the matter of Usha Sales Ltd. v. Malcolm Gomes : AIR1984Bom60 because this judgment has been followed by the Trial Court while rejecting the application for deciding the issues suggested by the applicant as preliminary issues. The learned Counsel, even though admitted the ratio laid down in this judgment, tried to persuade this Court that the exercise to be made by the Trial Court, shall be judicial exercise and the discretion, which has been vested, should be properly exercised by the Trial Court. The whole controversy in the present matter requires to be scrutinized in the backdrop of the facts and circumstances, which are involved in the present matter. The facts, which require a reference for deciding this matter, are as follows :
7. The non-applicant/plaintiff was employed by the applicant/defendant in the year 1966 and was dismissed by order dated 21st May, 1986. The non-applicant in the meanwhile was promoted as Assistant Storage Superintendent on the probation of three years in 1978. However, he was suspended by order dated 17th July, 1980 and the reversion was effected on 4th February, 1981. The departmental enquiry was initiated against him and after completion of the departmental enquiry, he has been dismissed. After the dismissal from the service, the present suit has been filed by the non-applicant against the applicant, wherein the relief claimed is to hold the dismissal order dated 21st May, 1986 as wrongful and illegal and to declare that the non-applicant is in continuous service of the applicant. The another relief claimed is to give direction to pay to the plaintiffs/non-applicant's full arrears of salary. Thus, in short, the suit was filed for quashing the dismissal order, reinstatement on his original post as Assistant Storage Superintendent and full back wages from the date of suspension and reversion till the date of reinstatement.
8. It is required to be mentioned that legality and validity of initial orders of suspension and reversion, which were challenged by filing a proceeding under the Bombay Industrial Relations Act, as per the contentions raised in the written statement, seem to have not been adjudicated, as the said proceeding was not tenable. The writ petition, which was filed, has been withdrawn. This is referred to for the purpose that there was no adjudication as to legality and correctness of the orders of suspension and reversion by the Industrial Court and/or by the Labour Court in a proceeding instituted under the Bombay Industrial Relations Act. But the proceeding was disposed of being not tenable. The writ petition has been said to be withdrawn, but the grounds, which were raised for contesting the said writ petition, have not been placed on record and are not known. However, what is pertinent to be noted is that even though, in short, it can be said that there was no adjudication of legality and correctness of suspension and reversion orders by the Competent Court, as required for the purposes of Section 11 of the Civil Procedure Code, the plea of res judicata has been raised. But in the present matter, the suspension and reversion orders are not under challenge. The order, by which the non-applicant/plaintiff has been dismissed from service, is under challenge and, therefore, the said order of dismissal was not under consideration of any Competent Court earlier to the present suit. In the result, this Court can analyse the force of contention of res judicata. I am aware that this Court is not deciding the issue of res judicata, but what is required to be pointed out is that in order to decide whether the decision and/or the withdrawal of the writ petition, which has been referred to in the preliminary objections of the applicant/defendant, operates as res judicata or not, the scrutiny of evidence and/or investigation of facts is necessary. The findings will have to be recorded as to whether the issues directly and substantially in those proceedings, which are directly and substantially in the present suit and whether those were the Courts, which were competent to try and decide and settle those issues. When the matter has been disposed of for want of jurisdiction or tenability, if the question of res judicata is to be considered, it cannot be done in the absence of sufficient evidence to satisfy the Court that the issues involved in the present suit were substantially involved in earlier proceeding. So is the case with the writ petition, which is withdrawn.
9. So far as the issue of jurisdiction is concerned, it is pleaded that plaintiff is workman and, therefore, the Industrial Disputes Act applies and the suit is without jurisdiction. In order to settle this issue, it is necessary to decide initially that the non-applicant/plaintiff is a workman within the definition of the Industrial Disputes Act. It is necessary to scrutinize firstly what is the wage packet, which the plaintiff was receiving at the relevant time, and secondly if the wage exceeds the limit, which has been stated in the said provision, whether the services, which were rendered by the non-applicant/plaintiff were clerical services and/or whether he was in the managerial capacity.
10. In order to decide this, the evidence in respect of nature of service, status of a person, job actually done and service actually delivered, duties assigned and carried out actually in accordance with law, is required to be scrutinized before status of a person as 'workman' is decided and in order to establish this, the investigation of facts, which will point out the salary, nature of job, duties discharged, etc. is very much necessary and that cannot be done on the basis of a bare plea that the Industrial Disputes Act applies, because the non-applicant/plaintiff is a workman. This will point out that this is not a pure question of fact, but on the contrary, this can be only decided on the basis of investigation of facts and the application of law to the said established facts. In the result, the issue of applicability of the Industrial Disputes Act and thereby ousting the jurisdiction of the Court is a issue of mixed question of fact and law.
11. The other ground of attack on jurisdiction is on the basis of the dismissal order, which was passed at Pune. The said order was served on the non-applicant at Wardha and at the relevant time, he was under suspension at Wardha. These are the contentions raised in the written statement. In the plaint, it has been stated in para 17 so far as the cause of action is concerned, that the cause of action has arisen within the territorial jurisdiction of this Hon'ble Court at Nagpur as on the date of initiation of enquiry he was working at Kamptee and, therefore the challenge in the present matter is to the departmental enquiry on the ground that there was absolutely no fair play and the enquiry was held in breach of the principles of natural justice and that the enquiry as vitiated for the reasons of mala fides. The facts, which are stated in respect of mala fides, are from the activities of the non-applicant/plaintiff as a Union Worker and the initiation of the departmental enquiry, while he was at Kamptee and, therefore, whether the cause of action has taken place at Kamptee or whether the cause of action has taken place at Pune and/or at Wardha, where the order was served, was necessary to be considered by the Trial Court. However, in order to come to either of these facts, which necessitate to be established, whether the enquiry was initiated by the applicant/defendant at Kamptee, whether the order was passed at Pune and was served at Wardha, etc. are required to be proved. Apart from that, while considering the issue of jurisdiction, it is the plaint, which is required to be considered and the pleadings of the plaintiff, which are in the plaint pertaining to the jurisdiction of the Court, are under scrutiny and, if established, can be considered for deciding the question of jurisdiction and, therefore, the plea, as raised by the applicant/defendant for the purpose of jurisdiction, can be only considered on the established facts. In view of the disputed pleadings unless the evidence is led and facts are proved, issue cannot be decided. In short, this issue also requires investigation into facts.
12. The last issue is in respect of the limitation. What is pertinent to be noted is that the order, which was under challenge by way of dismissal from service, was passed in 1986 and immediately the suit has been filed in the same year itself. The limitation, which is being claimed as time-barred, is in respect of the orders, which were passed in 1980 and 1981, whereby the non-applicant/plaintiff was suspended and reverted from the post. In fact, the subject-matter, which is directly and substantially in issue, is the challenge to the dismissal order. A reference to suspension and/or reversion, made in the plaint, is, in order to make complete the pleadings of mala fides and /or action of dismissal based on ulterior motive To show that, since beginning, the applicant/employer was motivated with mala fides and to demonstrate that aspect of the matter, those facts have been stated in the plaint and if they are established, may lead to an inference of mala fides or ulterior motive with which the employer was actuated. The plaint contains the pleadings of Union activities of plaintiff, union rivalry and thereafter the action of suspension, reversion, involvement in a particular misconduct, which result into ultimate order of dismissal. Therefore, the very plea, which has been raised that the suit is not within limitation, is in fact misconceived one, but anyhow, issue has been framed. However, what is important to be looked into is that there is no direct pleading by the applicant/employer as to how the suit, in which the dismissal order has been challenged, is time-barred. I have carefully gone through the pleadings made out in the written statement and they make a reference to the suspension and reversion orders, which were passed in 1980 and 1981 and, therefore, on the basis of those pleadings, it would be difficult for any Court to hold that the whole suit challenging the dismissal order is time-barred. This I am making reference because many times as a result of formal pleadings, issues framed and that itself is not sufficient to consider those issues as preliminary issues. However, the pleadings in the present case show that the suit is barred; however, the bar has been pleaded in respect of the orders passed in 1980 and 1981 and there is no specific pleading, in respect of the dismissal order passed in 1986, made in the preliminary objections or in the written statement, and, therefore, from the material, which has been placed on record, it is seen that neither the issue, which will directly connect with the suit, has been raised.
13. The point for consideration, therefore, is that whenever the issues are framed, as submitted by the learned Counsel for the applicant, then whether the Court is bound to consider those issues as preliminary issues. Needless it to say that Order XIV Rule 2 of the Civil Procedure Code has been amended in the year 1976 and the word 'shall', which was appearing in the said Rule, has been deleted and the word 'may' has been introduced. As a result of this legislative change, now the matter is within the discretion of the Trial Court to decide a particular issue as a preliminary issue or not. What is important, on reading Order XIV Rule 2 of the Civil Procedure Code, is that the issues raised and claimed to be preliminary issues must be the issues of law and the Trial Court must be of opinion that the case or any part thereof may be disposed of on an issue of law only. A further embargo on the Trial Court is that such issue must relate to the issue of jurisdiction or bar to the suit created by any law for the time being in force. However the general rule, which the Trial Court is expected to be followed, has been stated in Rule 2, Sub-rule (1) of Order XIV of the Civil Procedure Code, which is to the following effect :
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.
The non-obstante clause, with which Sub-rule (1) starts, takes away the force of the argument, which is based on the said Sub-rule (1) of Rule 2, made by the learned Counsel, because the non-obstante clause makes it clear that even if the suit can be disposed of on the preliminary issue, the Court shall pronounce the judgment on all issues and, therefore, the obligation, which has been cast on the Trial Court, is to dispose of the suit on all the issues instead of the preliminary issue. This legislative change has been brought about in the year 1976 with an object that the earlier rule instead of serving a purpose of disposing of a suit at an early stage on the basis of a preliminary issue, resulted into the prolonging and protracting of the litigation instead of diligent and efficacious delivery of justice. It gave liver to the contesting defendants to raise a frivolous plea raising the contention of the preliminary issues and take those issues from Court to Court and ultimately to be rejected by every Court. However, as a result of such practice, even though the object was sound enough to dispose of the litigation early, in practice, it ultimately resulted into delayed justice of which the cognizance was taken by the Legislature and, therefore, Rule 2 was amended in the year 1976. Therefore, an obligation has been now cast on the Court to decide all issues involved in the suit, because if at a later stage of the appeal, if it is found that the issues of law like jurisdiction, bar of res judicata or limitation go to the root of' 't, those issues can be very well considered by the Appellate Court and the matter can be decided. However, if it is found that if those issues are ultimately not decided in favour of the defendant, consideration of those issues at preliminary stage, results into the piecemeal trial of the suit and thereby taking the matter up and down at every stage of litigation instead of final disposal of controversy. In order to avoid the remand of the matter from the Appellate Court, and the Appellate Court should be in a position to dispose of finally the matter on all issues, Rule 2 has been amended in the year 1976. In fact, the mischief, which was noticed as a result of the practice followed by the parties, by taking the benefit of Rule 2 of Order XIV, as it existed earlier to 1976, has been tried to be remedied as a result of effecting the legislative change in the said Rule. On perusal of the amended provision of Rule 2 of Order XIV of C.P. C, it will be clearly seen that now there are only two categories of the issues, which can be decided as preliminary issues. Those issues of law relate to the jurisdiction of Court and bar to the suit created by any law for the time being in force. Apart from the above, no other issue can be decided as preliminary issue and consequently such issue must be left to be decided along with the rest of the issues. The object of this obviously is to avoid a piecemeal trial and procrastination of litigation. While summing up the ratio, the Allahabad High Court in the matter of Manager, Bettiah Estate v. Bhagwati Saran Singh : AIR1993All2 has observed in para 12 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 is 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.
14. In the matter of Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad and Ors. : AIR1991All89 it has been observed that under Order 14, Rule 2, as it stood prior to 1976 amendment, 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 words 'it shall try those issues first'. The word 'shall' used in old Order 14, Rule 2 has been replaced in the amended 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 for the Court to decide an issue of law as a preliminary issue.
15. After the amendment to the Civil Procedure Code brought about in the year 1976, it is discretionary for the Court to take up the issue as a preliminary issue. The Court is not bound to take up any issue as preliminary issue. All judicial discretions have to be exercised reasonably. Even if some of the issues fall within the ambit of Rule 2 of Sub-rule (2) of Order XIV, the Court can, on a reasonable exercise of the discretion, refuse to try those issues as the preliminary issues.
16. Analysing the principle underlying Order XIV. Rule 2 of C.P.C. it is further observed in paragraph 22 of the judgment in Sunni Central Waqf Board's case cited supra that where the finding on the question whether the suit is barred by limitation depends upon oral evidence it may not be desirable to take up the issue as preliminary issues. It is further observed in paragraph 31 of the said judgment that where evidence on the alleged preliminary issue will be the same or almost the same as in the suit itself such issue should not be heard and tried as a preliminary Issue. Thus where one party asserts that the place in dispute is a Hindu temple while the other party asserts that it is a mosque and grave-yard and the question as to applicability of Section 23 of the Limitation Act (1908) is involved which could be decided only after examining the evidence adduced by both parties, the same cannot be tried as preliminary issue.
17. In the matter of Ram Lal v. Mahatma Darshan Amar Anand AIR 1993 J.& K. 59 it has been observed that nature of issues vary in the given facts and circumstances. An issue which may appear to be a pure legal issue superficially may turn out to be a mixed issue of law and fact. This is why a discretion is given to the Court to guage and assess the true nature of an issue. Therefore, it cannot be propounded as a general principle that whenever an issue appears to be a legal issue, it must be necessarily treated as preliminary issue and decided first. It is for the Trial Court to decide unless, of course, it decides perversely.
18. Apart from the cases, which I have referred above, are from the other High Courts. But this Court had an opportunity to consider the provisions of Order XIV, Rule 2, as amended in the year 1976, in the matter of Usha Sales Ltd. v. Malcolm Gomes and Ors. : AIR1984Bom60 . The question, which was considered by this Court, is whether in view of Order XIV, Rule 2 of the Civil Procedure Code, it is obligatory upon the Court to decide the issues relating to the jurisdiction of the Court or bar to the suit created by any law for the time being in force as preliminary issues before the settlement of the other issues or trial of the entire case as a whole. In. answer to this question, it is observed, after analysing the provisions, that after the amendment in 1976 there is an obligations 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. However, a small exception is 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 Order 14, Rule 2(2). 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.
19. What has been observed and laid down by this Court long back in 1984 in Usha Sales Ltd.'s case, cited supra, has been observed similarly by the other High Courts as stated above and, therefore, to sum up a correct position of Order XIV, Rule 2 of the Civil Procedure Code, it will appear that the Court is now under an obligation to decide all issues even if there are some issues either covered under Order XIV, Rule 2, Clauses (a) and (b), which are purely of law. The Court, is not under an obligation to decide the question of law as a preliminary issue and no particular issue in respect of the jurisdiction of the Court and/or bar to the maintenance of the suit can be decided. The reason for this change in the Rule is to avoid multiple and multi-tier appeals and litigations between the parties and thereby shorten the litigations. Where the issues, which are relating to the jurisdiction and/or bar of law, if required investigation into the facts and/or leading of evidence and/or those issues are mixed question of fact and law, then, in that circumstance, those issues shall not be tried as preliminary issues. In a case where the issue is purely of law pertaining to the jurisdiction and bar of law, the Trial Court has been vested with a discretion either to decide those issues as preliminary issues and/or to decide them along with all other issues. While exercising the said discretion, the said Court has to analyse and form an opinion that prima facie if the said issue is decided, the matter will be finally concluded and if the Trial Court is of the opinion that either the issue even though arises out of the pleadings but will not lead to the final disposal and/or has been raised only for the sake of raising it and/or it is an attempt for prolongation of litigation and the protraction of the trial, the Court may refuse to try that issue as preliminary issue. In short, it is not mandatory for the Court to try any issue as preliminary issue. A very short and small discretion has been left to the Court. On the other hand, the policy of the legislation is to get and render a decision in respect of all issues involved in the matter in order to shorten the litigation and to avoid the re-trials and remands in the matter, if at the appellate or the revisional stage it was found that the matter could not be disposed of finally on the basis of the preliminary issues.
20. What is important to be borne in mind is that the Trial Court has specifically relied upon the matter of Usha Sales Ltd. cited supra, and has rejected the application. The Trial Court, relying upon the said judgment, has formed the opinion that in order to avoid the delay in disposal of the case, the case should be decided expeditiously on all issues and, therefore, the Trial Court has rejected the said application. This observation of the Trial Court is in consonance with the main legislative intention for amending Order XIV Rule 2 of the Civil Procedure Code and this was in consonance with the ratio and interpretation, which has been put forward by this Court in the judgment referred to above.
20. The learned Counsel then relied upon the judgment in the matter of Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar : [1964]3SCR763 and especially on paragraph 13 thereof, which is a follows :
The last point urged is that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.
However, the argument based by the learned Counsel on the point of jurisdiction on the basis of paragraph 13 of the judgment referred to above, is misconceived. The observations in paragraph 13 occurred because the High Court, having found that the Civil Court had no jurisdiction, has considered the cross-objections and, therefore, the submission was made that when the suit itself was not tenable, the consideration of the cross-objection on the part of the High Court is erroneous. In order to make this analysis more clear, a portion from paragraph 12 of the said judgment is necessary to be referred and it is as under :
The respondent being a ryot, a suit for the recovery of rent and ejectment is not cognizable by a Civil Court, in view of the provisions of Section 189 of the Act. Sub-section (1) of Section 189 reads :
189 (1). A District Collector or Collector hearing suits or applications of the nature specified in Parts A and B of the Schedule and the Board of Revenue or the District Collector exercising appellate or revisional jurisdiction therefrom shall hear and determine such suits or applications or exercise such jurisdiction as a Revenue Court.
No Civil Court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of which such suit or application might be brought or made. Suits by a landholder to recover arrears of rent and to eject a ryot are triable by a Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the Act. Such suits cannot be taken cognizance of by a Civil Court in view of second paragraph of Section 189(1). The High Court is right in holding that the Revenue Court alone has the jurisdiction over the suit and therefore in ordering the return of the plaint for presentation to the proper Court.
Thus, from the observations in paragraph 12, it is clear that the finding recorded by the High Court, while hearing the matter, was to the effect that in view of the provisions of Section 189 of the Madras Estates Land Act, the suit was not tenable and the plaint was returned. However, the error was committed that while returning the plaint, the cross-objections were considered and, therefore, the observations in paragraph 13 have occurred, which are being relied upon by the learned Counsel for the applicant. As observed earlier, this reliance on paragraph 13 is misconceived and more specifically it is misconceived in the light of Order XIV Rule 2 of the Civil Procedure Code, with which this Court is considering in the present matter.
21. Reliance was further placed by the learned Counsel for the applicant on the judgment in the matter of General Manager, Haji Latif Gani Bidi Manufacturers, Nagpur and Anr. v. Abdul Rashid and Anr. : (1963)IILLJ257Bom . The emphasis, which the learned Counsel placed, is on paragraphs 13 and 14 which are to the following effect :
13. After reciting the submissions of the learned Counsel for the parties on this point, the learned authority, respondent No. 2, has made the following remarks :
However, I find that there is a considerable force in the arguments advanced by learned Counsel Shri Kolate that the point of limitation should be dealt with while dealing the petition on merits in as much the contentions raised by Shri Kolate that the demand was made and the accounts are continuous are all questions of facts on which it would be necessary to hear the evidence of parties, oral as well as documentary. I therefore, hold that the point of limitation would be dealt with while deciding the petition on merits.14. This reasoning was clearly wrong. The mere fact that a considerable amount of evidence may have to be recorded for deciding the question of limitation would be no ground to put the cart before the horse and to proceed to consider the merits without admitting the petitions after recording satisfaction of the authority about the sufficiency of the alleged cause for delay. As was pointed out by the learned Chief Justice in Prem Narayan's case, cited supra 'the proper procedure for the authority to follow in every case where an application is filed beyond the period prescribed, is, not to admit the application but to keep it pending and to issue merely a notice upon the other side to show cause why delay should not be condoned.' In that view, the question of convenience or otherwise would be entirely irrelevant.
These observations were relied upon by the learned Counsel for the purpose that while deciding the issue as the preliminary issue, it is not averse to the Court to record the evidence, but on the contrary this Court has observed that in considering the question of delay and limitation, the Court shall record the evidence and decide it. This submission is also not correct one. The observations, which have been referred to above, are in the matter wherein an application under the Payment of Wages Act, as required under Section 15, has to be preferred within a period of one year and that the authority competent to entertain the application beyond a period of limitation must satisfy itself that there was good and sufficient cause for making the application beyond the period of limitation. This provision is just similar to the provision wherein the appeals or the revisions in a Civil Court are not filed within a period of limitation provided under the Limitation Act, the parties are entitled to file such proceeding coupled with the proceeding under Section 5 of the Limitation Act for condonation of delay. The proceeding of this nature stands on a different footing than the question or issue of limitation to be decided in a suit. If the suit is not within the limitation, it stands barred. While the proceedings, which have been referred to above wherein an application for condonation of delay is permissible, there it is admitted position that the period of limitation provided in law has elapsed, but there is sufficient ground or cause for not preferring the said proceedings within such time. There the Court is empowered to condone the delay on sufficient cause and thereby if the cause is found sufficient, the Court can entertain the proceeding and/or reject it. Therefore, unless and until the delay is condoned, the Court is not supposed to and entitled to entertain the said proceeding and, therefore, before the Court entertains that proceeding, it is the bounden duty of the Court to consider the application for condonation of delay and decide it first. This procedure cannot be equated with the procedure of hearing an issue of limitation involved in the suit. Both the proceedings stand on different footing and, therefore, the general submission that while deciding the preliminary issue, the Court can record the evidence and on that ground, the hearing of the preliminary issue cannot be deferred and/or rejected, is not a correct proposition of law, and that is something contrary and not envisaged in the scheme of Order XIV Rule 2 of the Civil Procedure Code. More specifically, this was pointed out by the learned Counsel for the applicant for issue of limitation involved in the present matter, which is to be treated as a preliminary issue. The answer is -- if the above referred judgments, which I have quoted and relied on, points out that if the preliminary issue requires investigation into facts, the said issue is no more an issue of law and, therefore, it cannot be treated as the preliminary issue. In the result, the reliance on the judgment in General Manager, H.L.G. Bidi Manufacturer's case, cited supra, is out of place and is of no help to the applicant.
22. The applicant then relied on the judgment in the matter of Praduman Kumar v. Girdhari Singh and Ors. . Paragraph 4 from the said judgment is heavily relied on, which is as follows :
In a case where issues are purely of law which do not require any investigation into facts and the Courts is of opinion that the case or any part thereof may be disposed of on the issues of law only, It is incumbent upon the Court to determine the issues of law first. If the determination of the issues of law is postponed to be determined along with the issues of fact it will mean unnecessary inconvenience and expense to the parties and waste of time and labour of the Court as well. In many cases if issues of law such as on a point of limitation, res judicata, jurisdiction or the suit being barred on the face of it by any law, arise and the Court having regard to the facts and circumstances of the case, is of opinion, that the case or any part thereof will be disposed of on such issues, the Court has no option having regard to the provisions of Order 14, Rule 2, but to determine those issues first. If on the other hand the Court is of opinion that the issue of law cannot be determined without investigation into facts or the point of law raised is not clear or that the case or any part of it cannot be disposed of the Court, may decline to determine the issues of law first. Therefore, the Court should address itself to these vital points and then decide whether the issues of law should be decided first or they should be decided with the issues of fact.
The learned Counsel, therefore, submitted that the issues like limitation, res judicata, jurisdiction or the suit being barred, shall be decided as the preliminary issues and that this case supports the contention advanced by him. It requires to be observed that this case has clearly indicated that where the issues are purely of law, which do not require any investigation into facts and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it is incumbent upon the Court to determine the issues of law first. In the result, where the issues require investigation into facts, those issues cannot be tried as preliminary issues and, therefore, at least in the facts and circumstances of the present case, even though the issues, which are pressed by the learned Counsel, are regarding limitation, res judicata and jurisdiction, it was not possible to treat these issues as preliminary issues, since they require investigation into facts and/or mixed question to law and fact. One more observation is required to be stated that the issues purely of law pertaining to limitation, res judicata or jurisdiction, can be deferred by the Trial Court from trying as preliminary issues in view of Sub-rule (1) of Rule 2 of Order XIV of the Civil Procedure Code, because that clause starts with non-obstante clause. In short, the ratio of this judgment does not render any help to the applicant in the facts of the present case.
23. The applicant next relied upon the judgment in the matter of State of Andhra Pradesh and Anr. v. Bandalam Srinivasulu and Ors. AIR 1982 A.P. 291. The observations relied upon are in paragraph 10, which are as follows :
The principles that emerge from the decisions cited above are that in the event of express or implied ouster of jurisdiction of the Civil Court, the preliminary issue regarding jurisdiction or bar should be normally taken up in the first instance and in the process of determination the Courts should bear in mind whether the relief sought in the suit is completely outside the brackets of the special enactment or the order is tainted by mala fides and ulterior considerations. For the purpose of framing the issue the necessary pre-requisite is to consider whether there is a bar to the Civil Court trying the suit by a provision under any law. In the process of trying the preliminary issue, it has to be considered whether the rigor of the bar contained in the enactment is diluted. The salutary principle of hearing all the issues at the same time contained in the circular issued by this Court should be adhered to normally but in a situation where a bar to the suit is contemplated by the Act, Order 14, Rule 2(b), C.P.C. warrants the framing of preliminary issue and initial decision of the same. The Court below erred in declining to frame the preliminary issue.
The ratio emphasises the word 'normally' and, therefore, the above observations do not suggest an obligation and duty on the Court. So also the statutory bar to be considered where for the application of a particular statute, the status of a person is required to be decided on the basis of the evidence to be recorded, has not been considered in the above-cited case. The case in hand required that the work the present non-applicant/respondent was carrying out, keeps the respondent inside the brackets of the definition of 'workman' satisfying all the tests of 'workman', as provided in the Industrial Disputes Act and then, in that circumstance, whether the issue has to be decided as preliminary issue, has, not been considered. Apart from this, this ratio is not in consonance with the ratio, as has been laid down by this Court, which has been referred to above and as I concur with the Single Bench Judgment of this Court, I am not inclined to follow this ratio. On the lines, which I have considered above, this judgment stands distinguished.
24. The applicant then relied on the judgment in the matter of Mitsubishi France v. Neyveli Lignite Corporation Ltd. and Anr. AIR 1985 Mad. 300 wherein it has been observed in paragraph 14 as follows :
Where in the suit to recover certain sum as damages for breach of contract filed on the original side of the High Court the defendant raised the plea that in view of the clause in the suit contract the High Court had no jurisdiction to entertain the suit it would not be proper to decline to try the issue of jurisdiction as a preliminary issue on the ground that it is a mixed question of fact and law because in the event of the defendant succeeding on the issue of jurisdiction he would avoid the ordeal of trial and therefore it would not only be desirable but also just that the issue be tried as a preliminary issue.
What is important to be observed is that these observations in paragraph 14 have been made without reference to Order XIV, Rule 2 of C.P.C. and the legislative changes, which have been brought about in Order XIV, Rule 2 of C.P. C, have not been considered while making the observations, but on a general convenience of the parties, the issue is directed to be decided as a preliminary issue. I am, therefore, not in agreement with the observations referred to by the applicant from this judgment.
25. The learned Counsel then relied on the judgment in the matter of Dilipsingh v. Malam Singh and Anr. : AIR1986MP270 wherein the following observations, which are in paragraph 4 of the judgment, have been relied on by the learned Counsel.
Whenever any question as to jurisdiction of the Court - territorial or pecuniary - is raised 'at any stage of the suit', it is the bounden duty of the Court to decide the matter short-circuit litigation and protect parties from undue harassment of protracted and expensive litigation. In the course of hearing of the matter, it may be open to the offending party who has wrongly valued the suit to amend his plaint 'at any stage' as sanctioned by Order 6, Rule 17. But, simply on the ground that no written statement is filed, the Court cannot shirk the responsibility of rendering a decision on the question agitated. It is true that when the question of valuation has no bearing on the question of pecuniary jurisdiction of the Court, the situation may be otherwise. But, as in the instant case where the point can be decided without evidence, it would be defeating the ends of justice by forcing the parties to wait till the evidence stage, which could have been merely an exercise in futility.
This case also does not help the learned Counsel, because it states that where the point can be decided without evidence, it would be defeating the ends of justice by forcing the parties to wait till the evidence stage and, therefore, whenever the evidence is required, the Court is not under an obligation to treat the issue as preliminary issue. It is important to mention that in respect of the matters of Order XIV, Rule 2 of C.P.C. there is a Full Bench judgment of the Madhya Pradesh High Court in Ramdayal Umraomal v. Pannalal Jagannathji : AIR1979MP153 which has been followed in Mohd. Mustafa Khan v. Gulam Raoof and Ors. : AIR1996MP11 . The relevant observations, which are in paragraph 10 in the matter of M/s. Ramdayal Umraomal, cited supra, are as follows :
Therefore, after reviewing the entire case law on the point, we are of the opinion that under Order 14, Rule 2, C.P.C. an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence., If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. Consequently the decisions cited as authorities on behalf of the applicant cannot be accepted as laying down the correct law.....
And, therefore, the case of the Madhya Pradesh High Court does not support the view advanced by the learned Counsel for the applicant.
26. The last judgment, which has been relied on, is in the matter of Smt. Laxmi Mani Dasi v. Manik Chandra Das : (1990)2CALLT277(HC) wherein reliance has been placed on paragraph 12, which is to the following effect:
It is true after the amendment of the C.P.C. by the Amendment Act of 1976, the Court shall subject to the provisions of Sub-rule (2) has to pronounce judgment on all issues, notwithstanding that the case may be disposed of on a preliminary issue. Under Sub-rule (2) if 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 force. The bar of res judicata as provided in Section 11 of the C.P.C. constitutes such a bar as contemplated in Clause (b) of Sub-rule (2) of Rule 2 of Order 14. In view of the facts and circumstances of the case, the suit in question could therefore be disposed of on such an issue of law only and that is exactly what both the Courts below did. Therefore, in view of what has been discussed above, I have no hesitation to hold that the finding in the previous suit and the judgment and decree passed in that suit are binding on the plaintiff in this suit as res judicata and there is no scope for re-agitating the same question again in this suit. Both the Courts below are, therefore, perfectly justified that issue No. 5 which was decided as a preliminary issue constitutes a bar as res judicata in deciding the present suit as contemplated under Order 14, Rule 2, C.P.C.....
What is important to be noted is that the Court was dealing with Order XIV, Rule 2 after the preliminary issue was decided by the Trial Court. So is not the case, which I am considering in the present matter. These observations in paragraph 12 do not make any reference to the question of res judicata, which is a mixed question of law and fact. On the contrary, the first part of the judgment itself makes it clear that under what, circumstances the question of res judicata has been decided by the Trial Court, which judgment has been upheld by the Calcutta High Court. The first part is as follows:
This appeal by the plaintiff/appellant involves only a short question of law as to whether a suit can be disposed of finally on the point of res judicata under Order 14, Rule 2, C.P.C. treating as a bar to the suit created by law under Clause (b) of Sub-rule (2) of Rule 2 of Order 14, C.P.C. After careful consideration, I have no hesitation to hold that when the facts are admitted, a question which has been decided fully and finally being an issue, directly and substantially, in the previous suit as in the present suit, it, no doubt, stands as a bar to the subsequent suit, and in that case, res judicata also operates as a bar to the suit created by law as contemplated under Clause (b) of Sub-rule (2) of Rule 2 of Order 14, C.P.C.
What is important to be noted are the words '...I have no hesitation to hold that when the facts are admitted....' Therefore, in the matter, which the Calcutta High Court considered, the facts were admitted and, therefore, there was no necessity to prove a particular fact or to lead evidence on the point of res judicata and, therefore, the observations made in paragraph 12 have to be read in the light of the first part of the judgment and they cannot be read in isolation. Therefore, the inference, which the learned Counsel wanted to draw by reading paragraph 12 cannot necessarily follow from the careful reading of the said judgment. On the contrary, it is found that the issue of res judicata in that case has been decided on the basis of the admitted facts between the parties where no investigation into facts or leading of evidence was necessary for the Court to assess the said issue.
27. Even though I have discussed the cases from the various High Courts including this Court, in order to maintain the ratio that even though the issue may be in respect of the jurisdiction or bar of a suit by any provisions of law, as required under Sub-rule (2) of Rule 2 of Order XIV of C.P.C. if the said issue is a mixed question of law and fact and/or requires investigation into facts, the same cannot be tried as preliminary issue. However, it has been laid down in the matter of S.S. Khanna v. F.J. Dillon : [1964]4SCR409 even prior to the amendment of 1976, as follows :
Under Order 14 Rule 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. 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.
In this proposition, even though slightly modified by the legislation by carrying out the amendment to the extent that even if the issues of law can be deferred by the Court to be considered along with all issues, as provided in Sub-rule (1) of Rule 2 of Order XIV of C.P.C. still the basic principle that the issues of law, which require leading of evidence or investigation into facts, should not be tried as preliminary issues, has been maintained. Not only that, but the amendment tried to fortify the views of the Apex Court with a modification. In short, therefore, the conclusion is that whether to try the issues as preliminary issues is a discretion vested in the Court and the issues, which are mixed questions of fact and law cannot be tried as preliminary issues. When this case S.S. Khanna's case, cited supra was pointed out, the learned Counsel submitted that the Apex Court's decision cannot be said to be ratio decidendi and, therefore, it cannot be made applicable to the case in hand. I am not in agreement with the learned Counsel, because, in the matter, which has been decided by the Supreme Court, whether the decision is a ratio decidendi or obiter dicta, it binds the Subordinate Courts and they are bound to follow it and, therefore, I am not inclined to consider and make out the distinction, which is desired by the learned Counsel, because such a distinction is of a futile nature in the matter, which has been decided by the Apex Court. I further find that all those cases relied on by the learned Counsel for the applicant are not in consonance with the Apex Court judgment and, therefore, I decline to follow them.
28. In the result, as I have analysed earlier in respect of each of the issues while dealing with the facts of the case that each of the issue, which was suggested by the learned Counsel to be tried as preliminary issue, was not simpliciter an issue of law, but it was a mixed question of fact and law. Not only that, but certain objections were raised only for the purpose that the suit should not lead to final disposal or any part thereof, as required by Sub-rule (1) of Rule 2 of Order XIV of C.P.C. and, therefore, I find that it was appropriate on the part of the Trial Court to hold that all issues can be decided at one and the same time. Therefore, I do not find that there is any substance in the present civil revision application, and it is hereby dismissed. Interim stay granted by this Court stands vacated.