Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1975 Supreme(All) 421

Allahbad High Court
N.D.OJHA
Estrela Batteries Ltd. - Appellant
Versus
Modi Industries Ltd - Respondent
Decided On : 12/01/1975

Advocates:
R.N. Bhalla and S.N. Kackar, for Applicant; A.N. Verma, for Opposite Party.

The issue of jurisdiction in a suit cannot be decided as a preliminary issue under Order 14, Rule 2 or Order 15, Rule 3 of the Civil Procedure Code if it raises a mixed question of law and fact.

Headnote:
CIVIL PROCEDURE CODE - ORDER 14, RULE 2 AND ORDER 15, RULE 3 - JURISDICTION - ISSUE OF JURISDICTION RAISING MIXED QUESTION OF LAW AND FACT - CANNOT BE DECIDED AS PRELIMINARY ISSUE UNDER ORDER 14, RULE 2 OR ORDER 15, RULE 3.
Fact of the Case:

The applicant, a company with its registered office in Bombay, was sued for damages for breach of contract in Ghaziabad. The applicant contested the suit on the ground that the Ghaziabad court lacked jurisdiction and that the suit could only be instituted in Bombay. The trial court framed several issues, including one on jurisdiction, and initially set a date for deciding the jurisdiction issue as a preliminary issue. However, the court later allowed an application by the opposite party to treat the jurisdiction issue as a mixed question of law and fact, to be decided after recording evidence from both parties.
Finding of the Court:

The court held that the trial court did not err in deciding that the issue of jurisdiction could not be decided as a preliminary issue under Order 14, Rule 2 or Order 15, Rule 3 of the Civil Procedure Code. The court found that the issue raised a mixed question of law and fact, and that deciding it as a preliminary issue would result in a lop-sided trial of the suit.
Issues: 1. Whether the issue of jurisdiction in the suit could be decided as a preliminary issue under Order 14, Rule 2 or Order 15, Rule 3 of the Civil Procedure Code. 2. Whether the trial court erred in allowing the application to treat the jurisdiction issue as a mixed question of law and fact.
Ratio Decidendi: 1. Order 14, Rule 2 of the Civil Procedure Code applies only to the disposal of a suit at the first hearing, which is the date on which issues are framed. Order 15, Rule 3 also applies to the first hearing, and contemplates a decision on the basis of the material available on that date, without the need for further evidence. 2. The issue of jurisdiction in the suit raised a mixed question of law and fact, and could not be decided as a preliminary issue under Order 14, Rule 2 or Order 15, Rule 3. 3. Deciding the jurisdiction issue as a preliminary issue would have resulted in a lop-sided trial of the suit, as most of the witnesses who would be needed to prove the documents relevant to the jurisdiction issue would also be witnesses to the merits of the case.
Final Decision: The revision petition was dismissed, and the trial court was directed to proceed with the suit.

ORDER:- The suit giving rise to the present revision was filed by the opposite party against the applicant for damages for breach of contract. The suit was instituted at Ghaziabad. The applicant has its registered office at Bombay. The suit was contested by the applicant, inter alia, on the ground that the Court at Ghaziahad had no jurisdiction to entertain the suit and it could be instituted only at Bombay. Third of Sept. 1974, was the date fixed for framing of issues. Issue No. 1 was to the effect whether the Court had jurisdiction to try the suit as alleged by the defendant. After framing issues on that date the Court fixed 12th October, 1974 for deciding issue No. 1 as a preliminary issue. In the meantime on 9th September, 1974, the applicant made an application for framing additional issues. This application was allowed on 14th September, 1974, and on 5th October, 1974 certain additional issues were framed. One of these additional issues being issue No. 7 was whether the plaintiff had accepted the order of the defendant at Modinagar as alleged in paragraph 7 of the plaint and, if so, its effect. On 5th October, 1974, itself an order was passed that issue No. 1 shall be disposed of after the parties had filed their papers. The date of twelfth of October, 1974, which had initially been fixed for determination of issue No. 1 was cancelled. Before the aforesaid issue could, however, be taken up for decision an application was made on 23rd November, 1974, on behalf of the opposite party inviting the attention of the Court to the circumstances that on the pleadings of the parties the issue about jurisdiction could not be decided under Order 14, Rule 2 of the Code of Civil Procedure inasmuch as it did not raise a pure question of law but raised a mixed question of law and fact. This application was opposed by the applicant but was allowed on 5th Feb., 1975, whereby it was held that issue No. 1 cannot be decided as a preliminary issue and shall be disposed of after recording the evidence of the parties. Aggrieved by that order the defendant has preferred the present revision.

2. It was urged by learned counsel for the applicant that the Court below committed a manifest error in taking the view that issue No. 1 could not be decided as a preliminary issue. Having heard learned counsel for the parties I am of opinion that the finding of the Court below is unassailable in a revision under Section 115 of the Civil P. C. On pleadings of the parties there can be no manner of doubt that issue No. 1 does not raise a pure question of law. On the other hand it raises a mixed question of law and fact. In this view of the matter no exception can be taken to the finding of the trial Court that the said issue could not be decided as a preliminary issue under Order 14, Rule 2 of the Civil P. C.

3. Learned counsel for the applicant then placed reliance on Order 15, Rule 3 of the Civil P. C. and on its basis it was urged that even though the issue about jurisdiction raised a mixed question of law and fact it could well have been decided as a preliminary issue under the said provision. I find myself unable to agree with this submission either. In my opinion Order 15, Rule 3, applies only to the disposal of a suit at the first hearing. It cannot be doubted that the date on which issues are framed is the date of first hearing in the suit. Order 15, Rule 3 will

apply only if the suit can be decided on the date of issues on the basis of the material already on the record on the said date. My attention was invited to Lachmi Narain v. Rup Narain (AIR 1921 Pat 467) and S. Ramakrishna v. Krishnaswami (AIR 1922 Mad 321) which no doubt support the contention of learned counsel for the applicant that Order 15, Rule 3 may apply to be taken recourse to in order to decide a suit even on a date after the date of issues. A contrary view has been taken by the Calcutta High Court in Debendra v. Jogendra, AIR 1933 Cal 559 which rules that Order 14, Rule 2 refers to the

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1975 Supreme(All) 421

Allahbad High CourtN.D.OJHAEstrela Batteries Ltd. - AppellantVersusModi Industries Ltd - RespondentDecided On : 12/01/1975

The issue of jurisdiction in a suit cannot be decided as a preliminary issue under Order 14, Rule 2 or Order 15, Rule 3 of the Civil Procedure Code if it raises a mixed question of law and fact.

Allahbad High Court
N.D.OJHA
Estrela Batteries Ltd. - Appellant
Versus
Modi Industries Ltd - Respondent
Decided On : 12/01/1975