Maharashtra State Warehousing Corporation Ltd. , Pune vs Bhujang Krishnaji Kohale

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 315

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Mhase S.B., J.
Maharashtra State Warehousing Corporation Ltd., Pune .... Applicant.
Versus
Bhujang Krishnaji Kohale.... Non-applicant.
Criminal Revision Application No. 793 of 1994, decided on 16/17/18-6-1998.
Advocates appeared :
R.B. Pendharkar, for applicant.
R.M. Lanjewar B.K. Pal, for non-applicant(absent).

Headnote:Order XIV, Rule 2(1)- Trial of preliminary issue-Question of fact and law both involved regarding res judicata and jurisdiction of Court - Discretion of Court-Provision being not mandatory Court can decide all issues and reject trial of preliminary issues first.- 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 circumstances 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.
Order XIV, Rules 2(1) and (2)-Whether to try the issues as preliminary issues is a discretion vested in the Court-Issues which are mixed questions of fact and law cannot be tried as preliminary issues. Under Order XIV; Rule 2 of the Code of Civil Procedure whether to try the issues as preliminary issues is a discretion vested in the Court. The issues, which are mixed questions of fact that law cannot be tried as preliminary issues. Case law reviewed.

JUDGMENT - MHASE S.B., J.: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 plaintiff's 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 his record?

Issue No. 20 : Whether the plaintiff's 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 plaintiff's 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 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 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 res judicata is concerned, the plea has been raised in paragraph 2 of the written statement, wherein it has been stated 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.

4-A. 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.

4-B. 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 contentio

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1998 Supreme(Bom) 315

Cases Referred (1)