SATHYANATH & ANR. versus SAROJAMANI on 6 May 2022

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SUPREME COURT REPORTS[2022] 4 S.C.R. 46

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SATHYANATH & ANR.

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SAROJAMANI

(Civil Appeal No. 3680 of 2022)

BMAY 06, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Code of Civil Procedure, 1908 : Or. XIV r 2 – Court topronounce judgment on all issues – Suit for declaration by theappellant against the respondent – Application by the respondentCseeking framing of issues u/Or. XIV r 2(2), to treat those aspreliminary issues – Dismissed by trial court – In revision petition,the High Court issued direction to trial court to frame preliminaryissue as to whether the suit is barred by res judicata – Sustainabilityof – Held: Not sustainable – If the issue is a mixed issue of law andDfact, or issue of law depends upon the decision of fact, such issuecannot be tried as a preliminary issue – Preliminary issues can bethose where no evidence is required and on the basis of reading ofthe plaint or the applicable law, if the jurisdiction of the Court orthe bar to the suit is made out, the Court may decide such issueswith the sole objective for the expeditious decision – Order of theEHigh Court to direct the trial court to frame preliminary issue onthe issue of res judicata is not desirable to ensure speedy disposalof the lis between parties – Or. XIV r.2 had salutary object in mindthat mandates the Court to pronounce judgments on all issues subjectto the provisions of sub-Rule (2) – However, in case where the issuesFof both law and fact arise in the same suit and the Court is of theopinion that the case or any part thereof may be disposed of on anissue of law only, it may try that suit first, if it relates to jurisdictionof the Court or a bar to the suit created by any law for the timebeing in force – It is only in those circumstances that the findingson other issues can be deferred – Res judicata is a mixed questionGof law and fact depending upon the pleadings of the parties, theparties to the suit etc. – It is not a plea in law alone or which barsthe jurisdiction of the Court or is a statutory bar under clause (b)of sub-Rule (2) – Thus, the order of the High Court remanding thematter to the trial court to frame preliminary issues runs counter toHthe mandate of Or. XIV r 2, and is set aside.

Allowing the appeal, the Court

HELD: 1.1 The provisions of Order XIV Rule 2 CPC arepart of the procedural law, but the fact remains that suchprocedural law had been enacted to ensure expeditious disposalof the lis and in the event of setting aside of findings onpreliminary issue, the possibility of remand can be avoided, aswas the language prior to the unamended Order XIV Rule 2. Ifthe issue is a mixed issue of law and fact, or issue of law dependsupon the decision of fact, such issue cannot be tried as apreliminary issue. In other words, preliminary issues can be thosewhere no evidence is required and on the basis of reading of theplaint or the applicable law, if the jurisdiction of the Court or thebar to the suit is made out, the Court may decide such issueswith the sole objective for the expeditious decision. Thus, if theCourt lacks jurisdiction or there is a statutory bar, such issue isrequired to be decided in the first instance so that the process ofcivil court is not abused by the litigants, who may approach thecivil court to delay the proceedings on false pretext. [Para 20][61-G-H; 62-A-B]

Issues

1.2 The order of the High Court to direct the trial court toframe preliminary issue on the issue of res judicata is not desirableto ensure speedy disposal of the lis between parties. Order XIVRule 2 of the Code had salutary object in mind that mandates theCourt to pronounce judgments on all issues subject to theprovisions of sub-Rule (2). However, in case where the issues ofboth law and fact arise in the same suit and the court is of theopinion that the case or any part thereof may be disposed of onan issue of law only, it may try that suit first, if it relates tojurisdiction of the Court or a bar to the suit created by any law forthe time being in force. It is only in those circumstances that thefindings on other issues can be deferred. It is not disputed thatres judicata is a mixed question of law and fact depending uponthe pleadings of the parties, the parties to the suit etc. It is not aplea in law alone or which bars the jurisdiction of the Court or isa statutory bar under clause (b) of sub-Rule (2). [Para 31][66-E-G]

1.3 The objective of the provisions of Order XLI Rules 24and 25 is that if evidence is recorded by the trial court on all the B

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Aissues, it would facilitate the first appellate court to decide thequestions of fact even by reformulating the issues. It is only whenthe first appellate court finds that there is no evidence led by theparties, the first appellate court can call upon the parties to leadevidence on such additional issues, either before the appellatecourt or before the trial court. All such provisions of law and theBamendments are to ensure one objective i.e., early finality to thelis between the parties. [Para 32][66-G-H; 67-A]

1.4 Keeping in view the object of substitution of sub-Rule(2) to avoid the possibility of remanding back the matter afterthe decision on the preliminary issues, it is mandated for the trialCcourt under Order XIV Rule 2 and Order XX Rule 5, and for thefirst appellate court in terms of Order XLI Rules 24 and 25 torecord findings on all the issues. [Para 33][67-B]

1.5 The order of the High Court remanding the matter tothe trial court to frame preliminary issues runs counter to theDmandate of Order XIV Rule 2 of the Code and thus, not sustainablein law. The trial court would record findings on all the issues sothat the first appellate court has the advantage of the findings sorecorded and to obliviate the possibility of remand if the suit isdecided only on the preliminary issue. The order passed by theEHigh Court is set aside. [Paras 34 and 35][67-C-D]

Jamia Masjid v. K.V. Rudrappa (Since Dead) by LRs. &Ors. 2021 SCC OnLine SC 792; Ramesh B. Desai andOrs. v. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638: [2006] 3 Suppl. SCR 414; Major S. S. Khanna v. Brig.FF. J. Dillon AIR 1964 SC 497 : [1964] SCR 409; SunniCentral Waqf Board and Ors. v. Gopal Singh Vishradand Ors. AIR 1991 ALL 894; Prithvi Raj Jhingta &Anr. v. Gopal Singh & Anr. AIR 2007 HP 11; HardwariLal v. Pohkar Mal and Ors. AIR 1978 P&H 230;Dhirendranath Chandra v. Apurba Krishna ChandraGand Ors. AIR 1979 Pat 34; Usha Sales Ltd. v. MalcolmGomes and Ors. AIR 1984 Bom 60; Smt. Aruna Kumariv. Ajay Kumar AIR 1991 J&K 1; Sardar Amarjit SinghKalra (Dead) by Lrs. v. Pramod Gupta (Smt) (Dead) by Lrs. & Anr. (2003) 3 SCC 272 : [2002] 5 Suppl. SCR350; Kailash v. Nanhku & Ors. (2005) 4 SCC 480 :[2005] 3 SCR 289; Sugandhi v. P. Rajkumar (2020) 10SCC 706; A. Shanmugam v. Ariya Kshatriya RajakulaVamsathu Madalaya Nandhavana Paripalanai Sangam& Ors. (2012) 6 SCC 430 : [2012] 4 SCR 74; AbdulRahman v. Prasony Bai & Anr. (2003) 1 SCC 488 :[2002] 4 Suppl. SCR 260; Srihari Hanumandas Totalav. Hemant Vithal Kamat & Ors. (2021) 9 SCC 99 –referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3680of 2022.

From the Judgment and Order dated 03.09.2021 of the High Courtof Judicature at Madras in C.R.P. (PD) No. 680 of 2021.

S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan, R.Sudhakaran, Vikash Kumar, Advs. for the Appellants.

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ASiddharth Naidu, V. Balachandran for M/s Ksn & Co., Advs. forthe Respondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

B1. The challenge in the present appeal is to an order dated 3.9.2021whereby in the revision petition filed by the defendant under Article 227of the Constitution of India, the trial court was directed to framepreliminary issue as to whether the suit is barred by res judicata.

2. The plaintiffs-appellants filed O.S. No. 95 of 2016 against theCrespondent, their paternal aunt. The appellants claimed a declaration fordeclaring the appellants as absolute owners of the suit property, judgmentand decree in O.S. No. 65 of 2003 as null and void, and, for permanentinjunction restraining the defendant and their agents in disturbing thepeaceful possession and enjoyment of the suit property by the appellantsin any manner. Initially, the defendant filed an application under OrderDVII Rule 11 of the Code of Civil Procedure, 1908[1] for rejection of theplaint but the same was dismissed by the trial court on 20.6.2017. It isthereafter, the defendant filed an application to frame issues under OrderXIV Rule 2(2) of the Code to treat the following as the preliminaryissues:

E“1. Whether the suit is not hit by resjudicata and estoppel as claimedby the defendant in the written statement in Para- 10 & 11.

2. Whether the suit is not hit by resjudicata and estoppel as claimedby the defendant in the written statement in Para-12.

3. Whether the suit is not barred by limitation as contented by theFdefendant in the written statement in Para-13.

4. Whether the Plaintiffs have deliberately and wantonly abusedthe process of the court, as contented by the defendant in thewritten statement in Para-15 and 16.

G5. Whether the suit is not valued properly and court fee paid isdeficient as claimed by the defendant in Para 18 of the Writtenstatement.”

3. The learned trial court dismissed the application of the defendanton 3.10.2019. Such order of the learned trial court was challenged inH1 For short, the ‘Code’

revision petition under Article 227 of the Constitution of India whereinthe High Court ordered the framing of issue of res judicata as preliminaryissue.

4. Learned counsel for the appellants relied upon provisions ofOrder XIV Rule 2 of the Code to contend such Order XIV Rule 2 hasbeen substituted by Central Act No. 104 of 1976, whereby the Court ismandated to pronounce judgment on all issues, even though the suit canbe disposed of on a preliminary issue. It was argued that such amendmentwas necessitated to avoid delay in the disposal of the proceedingsinasmuch as if only a preliminary issue is decided, the further appeal andrevision would be preferred only against the preliminary issue and afterthe preliminary issue is decided in favour of the plaintiffs, the evidencehas to be led on the remaining issues. Therefore, to ensure expeditiousdisposal of the proceedings and to avoid possibility of remand by theappellate or revisional jurisdiction, it was made mandatory for the Courtto record reasons on all the issues. Such finding would obliviate thepossibility of remand at appellate or revisional stage, even if the findingon preliminary or other issues are to be reversed.

5. Order XIV Rule 2 before amendment by the Act No. 104 of1976 reads thus:

“R. 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 maybe disposed of on the issues of law only, it shall try those issuesfirst, and for that purpose may, if it thinks fit, postpone the settlementof the issues of fact until after the issues of law have beendetermined.”

6. The said provision came up for consideration before this Courtin a judgment reported as Major S. S. Khanna v. Brig. F. J. Dillon[2]. Itwas held that under Order XIV Rule 2 of the Code where issues both oflaw and of fact arise in the same suit and the Court is of opinion that thecase or any part thereof may be disposed of on the issues of law only, itshall try those issues first, and postpone the settlement of the issues offact until other issues of law have been determined. It was held as under:

“18. ……. Under Order 14 Rule 2 Code of Civil Procedure, whereissues both of law and of fact arise in the same suit, and the Courtis of opinion that the case or any part thereof may be disposed of 2 AIR 1964 SC 497

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Aon the issues of law only, it shall try those issues first, and for thatpurpose may, if it thinks fit, postpone the settlement of the issuesof fact until after the issues of law have been determined. Thejurisdiction to try issues of law apart from the issues of fact maybe exercised only where in the opinion of the Court the whole suitmay be disposed of on the issues of law alone, but the Code confersBno jurisdiction upon the Court to try a suit on mixed issues of lawand fact as preliminary issues. Normally all the issues in a suitshould be tried by the Court: not to do so, especially when thedecision on issues even of law depend upon the decision of issuesof fact, would result in a lopsided trial of the suit.”C7. The Order XIV Rule 2 after the substitution of Rule 2 by theAct No. 104 of 1976, effective from 1.4.1977, reads thus:

“2.Court to pronounce judgment on all issues.—(1)Notwithstanding that a case may be disposed of on a preliminaryissue, the Court shall, subject to the provisions of sub-rule (2),Dpronounce judgment on all issues.

(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 maybe disposed of on an issue of law only, it may try that issue first ifthat issue relates to—

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(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlementof the other issues until after that issue has been determined, andFmay deal with the suit in accordance with the decision on thatissue.”

8. Some other provisions of the Code, which are relevant to decidethe issues raised in the preset appeal are as follows:

“ORDER XX

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“5. Court to state its decision on each issue. – In suits in whichissues have been framed, the Court shall state its finding or decision,with the reasons therefor, upon each separate issue, unless the H

SATHYANATH & ANR. v. SAROJAMANI[HEMANT GUPTA, J.]

finding upon any one or more of the issue is sufficient for thedecision of the suit.

ORDER XLI

APPEALS FROM ORIGINAL DECREES

24. Where evidence on record sufficient, Appellate Court maydetermine case finally. - Where the evidence, upon the record issufficient to enable the Appellate Court to pronounce judgment,the Appellate Court may, after resettling the issues, if necessary,finally determine the suit, notwithstanding that the judgment ofthe Court from whose decree the appeal is preferred has proceededwholly upon some ground other than that on which the AppellateCourt proceeds.

25. Where Appellate Court may frame issues and refer them fortrial to Court whose decree appealed from. - Where the Courtfrom whose decree the appeal is preferred has omitted to frameor try any issue, or to determine any question of fact, which appearsto the Appellate Court essential to the right decision of the suitupon the merits, the Appellate Court may, if necessary, frameissues, and refer the same for trial to the Court from whose decreethe appeal is preferred, and in such case shall direct such Court totake the additional evidence required; and such Court shall proceed to try such issues, and shall returnthe evidence to the Appellate Court together with its findingsthereon and the reasons therefor [within such time as may befixed by the Appellate Court or extended by it from time to time.”

9. The amended provision of Order XIV came up for considerationbefore the Full Bench of Allahabad High Court in a judgment reportedas Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad andOrs.[3] It was held that material changes had been brought about bysubstituting Order XIV Rule 2 of the Code. The word ‘shall’ in theunamended provision has been replaced by the word ‘may’ in thesubstituted provision, therefore, it is now discretionary for the Court todecide the issue of law as a preliminary issue, or to decide it along withthe other issues. It was further held that even all issues of law cannot bedecided as preliminary issues and only those issues of law falling within A

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Athe ambit of clause (a) and (b) of sub-rule (2) of Rule 2 could be decided.The High Court held as under:

“22. Under the above provision once the court came to theconclusion that the case or any part thereof could be disposed ofon the issues of law only it was obliged to try those issues firstand the other issues could be taken up only thereafter, if necessitysurvived. The court had no discretion in the matter. This flowsfrom the use of the word “it shall try those issues first”. Materialchange has been brought about in legal position by amended O.14, R. 2 which reads as follows:—

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24. The word “shall” used in old O. 14, R. 2 has been replaced inthe present Rule by the word “may”. Thus now it is discretionaryfor the Court to decide the issue of law as a preliminary issue orto decide it along with the other issues. It is no longer obligatoryfor the Court to decide an issue of law as a preliminary issue.

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25. Another Change brought about by the amended provision isthat not all issues of law can be decided as preliminary issues.Only those issues of law can be decided as preliminary issueswhich fell within the ambit of cls. (a) and (b) of sub-r. (2) of R. 2Eof O. 14. Cl. (a) mentions “jurisdiction of the Court” and clause(b) deals with “bar to the suit created by any law for the timebeing in force.” In the present case cl. (a) is not attracted. Thecase is sought to be brought within the ambit of cl. (b). For bringingit under cl. (b) Limitation Act and the Muslim Waqf Act havebeen invoked.”F

10. A Full Bench of Himachal Pradesh High Court in a judgmentreported as Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr.[4], heldas under:

“8. The legislative mandate is very clear and unambiguous. In thelight of the past experience that the old Rule 2 whereby, in thefact-situation of the trial Court deciding only preliminary issuesand neither trying nor deciding other issues, whenever an appealagainst the judgment was filed before the Appeal Court and theAppeal Court on finding that the decision of the trial Court on G

H4 AIR 2007 HP 11

preliminary issues deserved to be reversed, the case per forcehad to be remanded to the trial Court for trial on other issues. Thisresulted in delay in the disposal of the cases. To eliminate thisdelay and to ensure the expeditious disposal of the suits, both atthe stage of the trial as well as at the appeal stage, the legislaturedecided to provide for a mechanism whereby, subject to theexception created under sub-rule (2), all issues, both of law andfact were required to be decided together and the suit had to bedisposed of as a whole, of course based upon the findings of thetrial Court on all the issues, both of law and fact.

9. Based upon the aforesaid reasons therefor, and in the light oflegislative background of Rule 2 and the legislative intent as wellas mandate based upon such background, as well as on its plainreading, we have no doubt in our minds that except in situationsperceived or warranted under sub-rule (2) where a Court in factframes only issues of law in the first instance and postponessettlement of other issues, under sub-rule (1), clearly and explicitlyin situations where the Court has framed all issues together, bothof law as well as facts and has also tried all these issues together,it is not open to the Court in such a situation to adopt the principleof severability and proceed to decide issues of law first, withouttaking up simultaneously other issues for decision. This course ofaction is not available to a Court because sub-rule (1) does notpermit the Court to adopt any such principle of severability and todispose of a suit only on preliminary issues, or what can be termedas issues of law. Sub-rule (1) clearly mandates that in a situationcontemplated under it, where all the issues have been framedtogether and have also been taken up for adjudication during thecourse of the trial, these must be decided together and the judgmentin the suit as a whole must be pronounced by the Court coveringall the issues framed in the suit.”

11. A Single Bench of Punjab and Haryana High Court in ajudgment reported as Hardwari Lal v. Pohkar Mal and Ors.[5] comparedthe provision of Order XIV Rule 2 prior to and after the amendment andheld as under:

“5. A comparative reading of the said provision as it existed earlierto the amendment and the one after amendment would clearly5 AIR 1978 P&H 230

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Aindicate that the consideration of an issue and its disposal aspreliminary issue has now been made permissible only in limitedcases. In the unamended Code, the categorisation was onlybetween issues of law and of fact and it was mandatory for theCourt to try the issues of law in the first instance and to postponethe settlement of the issues of fact until after the issues of lawBhad been determined. On the other hand, in the amended provisionthere is a mandate to the Court that notwithstanding that a casemay be disposed of on a preliminary issue, the Court has topronounce judgment on all the issues. The only exception to this iscontained in sub-rule (2). This sub-rule relaxes the mandate to aClimited extent by conferring a discretion upon the Court that if it isof opinion that the case or any part thereof may be disposed of“on an issue of law only,” it may try that issue first. The exerciseof this discretion is further limited to the contingency that the issueto be so tried must relate to the jurisdiction of the Court or a bar tothe suit created by a law in force.”D

12. A Single Bench of Patna High Court in a judgment reportedas Dhirendranath Chandra v. Apurba Krishna Chandra and Ors.[6]held that even if the case may be disposed of on a preliminary issue, theCourt is bound to pronounce judgment on all the issues, subject to theprovision in sub-rule (2) according to which if the case or any part thereofEmay be disposed of on issue of law only and if that issue relates tojurisdiction of the Court or a bar to the suit created by law for the timebeing in force, the Court may try such issue first. The High Court heldas under:“6. A plain reading of R. 2 will show that ordinarily even if theFcase may be disposed of on a preliminary issue, the Court is boundto pronounce judgement on all issues. This ordinary rule is subjectto only one exception which has been provided in sub-rule (2)according to which if the case or any part thereof may be disposedof on issue of law only and if that issue of law relates to theGjurisdiction of the Court or a bar to the suit created by any law forthe time being in force the court may try such issue first. It is,therefore, clear that a departure from the ordinary rule providedin sub-rule (1) of R. 2 can be made by the Court only in thecircumstances mentioned in sub-rule (2) and even in these circumstances the Court has only a discretion that it may try anissue of law relating to the points mentioned in clauses (a) and (b)of sub-rule (2) as a preliminary issue before framing other issues.There is, however, nothing in sub-rule (2) which in my opinionmakes it obligatory for the Court to try such an issue first in allcases. If, therefore, the Court is of opinion that in any particularcase it will be more expedient to try all the issues together andtherefore, if it refuses to try and decide any issue of law even onthe points referred to in cls. (a) and (b) of sub-rule (2) as apreliminary issue before taking up other issues.

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13. A Single Bench of Bombay High Court in a judgment reportedas Usha Sales Ltd. v. Malcolm Gomes and Ors.[7] held that after theamendment, a duty is cast upon the Court that it must proceed to hear allthe issues and pronounce the judgment on the same, except that theCourt may try an issue relating to the jurisdiction of the Court or to thelegal bar to the suit as a preliminary issue. It was held to be more in thenature of discretion rather than a duty. It was held as under:

“11. From the above it is easily seen that there is an obligationcast upon the Court that even though a case may be disposed ofon a preliminary issue the Courts shall subject to the provision ofsub-rule (2) pronounce judgment on all issues. In other words, theobligation to decide a question of law as a preliminary issue if thatdecision disposes of the case or part of the case is no longer,there. Similarly, the discretion to decide any other issue as apreliminary issue has been taken away totally from the Court. Onthe other hand, a duty is cast upon the Court that it must proceedto hear all the issues and pronounce judgment on the same.

12. There is, however, a small exception carved out to the aboveprovision. The Court may try an issue relating to the jurisdictionof the Court or to the legal bar to the suit as a preliminary issuebut this is more in the nature of a discretion rather than a duty andthe Court is not bound to try any issue despite the provisioncontained in sub-r. (2) of R. 2 of O. 14 of the Code. The words “itmay try” are clearly indicative of the fact that discretion is given AB

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Ato the Court and no duty is cast upon the Court to decide anyissue as a preliminary issue.”

14. A Single Bench of Jammu and Kashmir High Court in ajudgment reported as Smt. Aruna Kumari v. Ajay Kumar[8] held asunder:B

“4. …..Admittedly both the parties have to lead evidence regardingboth the issues. In case issue No. 2 is allowed to be treated aspreliminary the parties will certainly lead evidence in the case andinstead of disposing of the case expeditiously it will prolong thematter and frustrate the very basis of law contained in OrderCXIV, Rule 2, Civil Procedure Code. The evidence to be led byboth the parties will almost cover both the issues and it cannot,therefore, be said that by allowing issue No. 2 to be treated aspreliminary the trial of the case would be expedited. When wereview the whole law on the point it becomes clear that whereissue of jurisdiction is a mixed question of law and fact requiringDevidence to be recorded by both the sides same cannot be treatedas a preliminary issue.”

15. The matter has also been examined by this Court in a judgmentreported as Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta andOrs.[9] wherein it was held as under:E

“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that whereissues both of law and of fact arise in the same suit, and the courtis of the opinion that the case or any part thereof may be disposedof on an issue of law only, it may try that issue first if that issuerelates to (a) the jurisdiction of the court, or (b) a bar to the suitFcreated by any law for the time being in force. The provisions ofthis Rule came up for consideration before this Court in MajorS.S. Khanna v. Brig. F.J. Dillon [(1964) 4 SCR 409 : AIR 1964SC 497] and it was held as under: (SCR p. 421)

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Though there has been a slight amendment in the language ofOrder 14 Rule 2 CPC by the amending Act, 1976 but the principleenunciated in the above quoted decision still holds good and there 8 AIR 1991 J&K 1H9 (2006) 5 SCC 638

can be no departure from the principle that the Code confers nojurisdiction upon the court to try a suit on mixed issues of law andfact as a preliminary issue and where the decision on issue of lawdepends upon decision of fact, it cannot be tried as a preliminaryissue.”

16. This Court in Ramesh B. Desai held that the principlesenunciated in Major S. S. Khanna still hold good and the Code confersno jurisdiction upon the Court to try a suit on mixed issues of law andfact as a preliminary issue and where the decision on issue dependsupon the question of fact, it cannot be tried as a preliminary issue. Thesaid finding arises from the provision of Order XIV Rule 2 clause (a)and (b). After the amendment, discretion has been given to the Court bythe expression ‘may’ used in sub-rule (2) to try the issue relating to thejurisdiction of the Court i.e. territorial and pecuniary jurisdiction, or a barto the suit created by any law for the time being in force i.e., the bar tofile a suit before the Civil Court such as under the Securitisation andReconstruction of Financial Assets and Enforcement of Security InterestAct, 2002 and numerous other laws particularly relating to land reforms.Hence, if Order XIV Rule 2 is read along with Order XII Rule 5, theCourt is expected to decide all the issues together unless the bar ofjurisdiction of the Court or bar to the suit in terms of sub-rule (2) clause(a) and (b) arises. The intention to substitute Rule 2 is the speedy disposalof the lis on a question which oust either the jurisdiction of the Court orbars the plaintiff to sue before the Civil Court.

17. We may state that the First Schedule appended to the Codecontains the procedure to be applied in respect of the matters comingfor adjudication before the Civil Court. Such procedure is handmaid ofjustice as laid down by the Constitution Bench judgment of this Courtreported as Sardar Amarjit Singh Kalra (Dead) by Lrs. v. PramodGupta (Smt) (Dead) by Lrs. & Anr.[10] wherein it was observed asunder:

“26. Laws of procedure are meant to regulate effectively, assistand aid the object of doing substantial and real justice and not toforeclose even an adjudication on merits of substantial rights ofcitizen under personal, property and other laws. Procedure hasalways been viewed as the handmaid of justice and not meant to A

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Ahamper the cause of justice or sanctify miscarriage ofjustice……..”

18. A three Judge Bench in a subsequent judgment reported asKailash v. Nanhku & Ors.[11] held that all rules of procedure are handmaidof justice. The language employed by the draftsman of processual lawBmay be liberal or stringent but the object of prescribing procedure is toadvance the cause of justice. The Court held as under:

“28. All the rules of procedure are the handmaid of justice. Thelanguage employed by the draftsman of processual law may beliberal or stringent, but the fact remains that the object ofprescribing procedure is to advance the cause of justice. In anadversarial system, no party should ordinarily be denied theopportunity of participating in the process of justice dispensation.Unless compelled by express and specific language of the statute,the provisions of CPC or any other procedural enactment oughtnot to be construed in a manner which would leave the courthelpless to meet extraordinary situations in the ends of justice.The observations made by Krishna Iyer, J. in Sushil KumarSen v. State of Bihar [(1975) 1 SCC 774] are pertinent: (SCC p.777, paras 5-6)

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“The mortality of justice at the hands of law troubles a judge’sconscience and points an angry interrogation at the lawreformer.

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The processual law so dominates in certain systems as tooverpower substantive rights and substantial justice. The humanistrule that procedure should be the handmaid, not the mistress, ofFlegal justice compels consideration of vesting a residuary powerin judges to act ex debito justitiae where the tragic sequel otherwisewould be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive.”

29. In State of Punjab v. Shamlal Murari [(1976) 1 SCC 719 : 1976GSCC (L&S) 118] the Court approved in no unmistakable termsthe approach of moderating into wholesome directions what isregarded as mandatory on the principle that: (SCC p. 720)

“Processual law is not to be a tyrant but a servant, not anobstruction but an aid to justice. Procedural prescriptions arethe handmaid and not the mistress, a lubricant, not a resistantin the administration of justice.”

In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] theCourt reiterated the need for interpreting a part of the adjectivelaw dealing with procedure alone in such a manner as to subserveand advance the cause of justice rather than to defeat it as all thelaws of procedure are based on this principle.”

19. This Court in Sugandhi v. P. Rajkumar[12] held that if theprocedural violation does not seriously cause prejudice to the adversaryparty, Courts must lean towards doing substantial justice rather thanrelying upon procedural and technical violations. It is not to be forgottenthat litigation is nothing but a journey towards truth which is the foundationof justice and the Court is required to take appropriate steps to thrashout the underlying truth in every dispute. It was held as under:

“9. It is often said that procedure is the handmaid of justice.Procedural and technical hurdles shall not be allowed to come inthe way of the court while doing substantial justice. If theprocedural violation does not seriously cause prejudice to theadversary party, courts must lean towards doing substantial justicerather than relying upon procedural and technical violation. Weshould not forget the fact that litigation is nothing but a journeytowards truth which is the foundation of justice and the court isrequired to take appropriate steps to thrash out the underlyingtruth in every dispute. Therefore, the court should take a lenientview when an application is made for production of the documentsunder sub-rule (3).”

20. The provisions of Order XIV Rule 2 are part of the procedurallaw, but the fact remains that such procedural law had been enacted toensure expeditious disposal of the lis and in the event of setting aside offindings on preliminary issue, the possibility of remand can be avoided,as was the language prior to the unamended Order XIV Rule 2. If theissue is a mixed issue of law and fact, or issue of law depends upon thedecision of fact, such issue cannot be tried as a preliminary issue. Inother words, preliminary issues can be those where no evidence is A

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Arequired and on the basis of reading of the plaint or the applicable law, ifthe jurisdiction of the Court or the bar to the suit is made out, the Courtmay decide such issues with the sole objective for the expeditiousdecision. Thus, if the Court lacks jurisdiction or there is a statutory bar,such issue is required to be decided in the first instance so that theprocess of civil court is not abused by the litigants, who may approachBthe civil court to delay the proceedings on false pretext.

21. In fact, in a judgment reported as A. Shanmugam v. AriyaKshatriya Rajakula Vamsathu Madalaya Nandhavana ParipalanaiSangam & Ors.[13], this Court held as under:

C“39. Our courts are usually short of time because of huge pendencyof cases and at times the courts arrive at an erroneous conclusionbecause of false pleas, claims, defences and irrelevant facts. Alitigant could deviate from the facts which are liable for all theconclusions. In the journey of discovering the truth, at times, thisCourt, at a later stage, but once discovered, it is the duty of theDcourt to take appropriate remedial and preventive steps so that noone should derive benefits or advantages by abusing the processof law. The court must effectively discourage fraudulent anddishonest litigants.”

22. The different judgments of the High Court referred to aboveEare in consonance with the principles laid down by this Court in RameshB. Desai that not all issues of law can be decided as preliminary issues.Only those issues of law can be decided as preliminary issues which fellwithin the ambit of clause (a) relating to the “jurisdiction of the Court”and (b) which deal with the “bar to the suit created by any law for theFtime being in force.” The reason to substitute Rule 2 is to avoid piecemealtrial, protracted litigation and possibility of remand of the case, wherethe appellate court differs with the decision of the trial court on thepreliminary issues upon which the trial court had decided.

23. On the other hand, learned counsel for the respondent reliesGupon the judgments of this Court reported as Abdul Rahman v. PrasonyBai & Anr.[14], Srihari Hanumandas Totala v. Hemant Vithal Kamat& Ors.[15] and Jamia Masjid v. K.V. Rudrappa (Since Dead) by LRs.

13 (2012) 6 SCC 43014 (2003) 1 SCC 488H15 (2021) 9 SCC 99

& Ors.[16] to contend that on a question of res judicata, the preliminaryissue needs to be framed.

24. In Abdul Rahman, this Court was examining a suit filed bythe appellant in the year 1999 to declare that the defendant is not thedaughter of Mangal Singh and that the appellant is in adverse possessioneven during the life time of Mangal Singh. An additional issue was framedregarding the jurisdiction of the civil suit to try the said suit. The HighCourt in proceedings passed an order on 29.11.2001 dismissing the suiton the preliminary issue whether the dispute to the present civil suit hasalready been decided and adjudicated by the Court and is barred by theprinciples of res judicata. An intra court appeal was filed which wasdismissed on 4.12.2001 and thereafter, the matter travelled to this Court.In these circumstances, this Court held as under:

“21. For the purpose of disposal of the suit on the admitted facts,particularly when the suit can be disposed of on preliminary issues,no particular procedure was required to be followed by the HighCourt. In terms of Order 14 Rule 1 of the Code of Civil Procedure,a civil court can dispose of a suit on preliminary issues. It is neitherin doubt nor in dispute that the issues of res judicata and/orconstructive res judicata as also the maintainability of the suit canbe adjudicated upon as preliminary issues. Such issues, in fact,when facts are admitted, ordinarily should be decided as preliminaryissues.”

25. A perusal of the above judgment of this Court shows that itwas an admitted fact that issue of res judicata and of constructive resjudicata can be adjudicated as preliminary issue. Since it was an admittedfact, it cannot be said that principle of law has been enunciated that aplea of res judicata can be decided as a preliminary issue.

26. In Srihari Hanumandas Totala, the property was mortgagedin favour of Karnataka State Finance Corporation[17]. The Corporationauctioned the property as the loan was not repaid. The legal heirs of theborrower filed a suit in OS No. 138 of 2008 challenging the sale deeddated 8.8.2006 executed by the Corporation and partition of the suitproperty. A separate OS No. 103 of 2007 was filed by the purchaserfrom the Corporation. Such suit of the purchaser was decreed on 16 2021 SCC OnLine SC 792

17 For short, the ‘Corporation’

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A26.2.2009. The decree in the said suit was affirmed by the High Courton 11.8.2007. The purchaser from the Corporation filed an applicationunder Order VII Rule 11 for rejection of the plaint of OS No. 138 of2008. Such application was dismissed by the learned trial court. Theorder was affirmed in revision by the High Court holding that the groundof res judicata could not be decided merely by looking averments in theBplaint. It is the said order which became subject matter of challengebefore this Court. This Court found that the plea of res judicata requiresconsideration of the pleadings, issues and decision in the previous suitand such a plea would be beyond the scope of Order VII Rule 11.However, in the operative paragraph, it was observed that the trial courtCshall consider whether a preliminary issue should be framed under OrderXIV, and if so, to decide it within a period of three months of raising thepreliminary issue. The operative part of the order reads thus:

“28. For the above reasons, we hold that the plaint was not liableto be rejected under Order 7 Rule 11(d) and affirm the findings ofDthe trial court and the High Court. We clarify however, that wehave expressed no opinion on whether the subsequent suit is barredby the principles of res judicata. We grant liberty to the appellant,who claims as an assignee of the bona fide purchaser of the suitproperty in an auction conducted by KSFC, to raise an issue ofthe maintainability of the suit before the Additional Civil Judge,EBelgaum in OS No. 138 of 2008. The Additional Civil Judge,Belgaum shall consider whether a preliminary issue should beframed under Order 14, and if so, decide it within a period of 3months of raising the preliminary issue. In any event, the suit shallbe finally adjudicated upon within the outer limit of 31-3-2022.”F27. This Court was thus examining the scope of Order VII Rule11 of the Code, whereas such is not the issue in the present appeal. Infact, the defendant has filed an application for framing of preliminaryissues. The direction of the High Court is on such application. Therefore,such application needs to be considered in the light of the provisions ofGOrder XIV Rule 2 of the Code.

28. In Jamia Masjid, the judgment and decree in a second appealholding that the suit is barred by the principle of res judicata was thesubject matter of challenge before this Court. The learned trial courtdecided Issue Nos. 5 and 6 related to res judicata and limitation asHpreliminary issue. It was held that suit was not barred by limitation but barred by res judicata. In appeal, such finding was affirmed. However,in second appeal, the matter was remanded to the trial court for disposalof the suit in accordance with law holding that the suit is not barred byres judicata. In appeal against such judgment and decree, appeal wasremanded to the High Court. The High Court after remand held that thejudgment in a representative suit under Section 92 of the Code binds theparties to the suit and would thus operate as res judicata.

29. In appeal before this Court, it was considered whether resjudicata raises a mixed question of law and facts. The Court held asunder:

“26. The court while undertaking an analysis of the applicabilityof the plea of res judicata determines first, if the requirementsof section 11 CPC are fulfilled; and if this is answered in theaffirmative, it will have to be determined if there has been anymaterial alteration in law or facts since the first suit was decreedas a result of which the principle of res judicata would beinapplicable. We are unable to accept the submission of theappellants that res judicata can never be decided as a preliminaryissue. In certain cases, particularly when a mixed question of lawor fact is raised, the issue should await a full-fledged trial afterevidence is adduced. In the present case, a determination of thecomponents of res judicata turns on the pleadings and judgmentsin the earlier suits which have been brought on the record. Theissue has been argued on that basis before the Trial court and thefirst appellate court; followed by two rounds of proceedings beforethe High Court (the second following upon an order of remand bythis court on the ground that all parties were not heard). All thedocumentary material necessary to decide the issue is before thecourt and arguments have been addressed by the contesting sidesfully on that basis.

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62. In view of the discussion above, we summarise our findingsbelow:

(i) Issues that arise in a subsequent suit may either be questionsof fact or of law or mixed questions of law and fact. An alterationin the circumstances after the decision in the first suit, will requirea trial for the determination of the plea of res judicata if there AB

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Aarises a new fact which has to be proved. However, the pleaof res judicata may in an appropriate case be determined as apreliminary issue when neither a disputed question of fact nor amixed question of law or fact has to be adjudicated for resolvingit;”

B30. A perusal of the said judgment would show that only issueNos. 5 and 6 were decided relating to res judicata and limitation aspreliminary issues by judgment dated 3.2.2006. This Court set aside thefinding on the preliminary issue by judgment dated 23.9.2021 i.e., almostmore than 15 years later when the matter was remanded back to thetrial court. The absence of the decision on all issues have necessitatedCthe matter to be remanded back, defeating the object of expeditiousdisposal of lis between the parties. The conclusion in Para 62(i) is thatthe plea of res judicata in appropriate cases may be determined aspreliminary issue when it is neither a disputed question of fact nor amixed question of law and fact. Such finding is what this Court held inDRamesh B. Desai.

31. We find that the order of the High Court to direct the learnedtrial court to frame preliminary issue on the issue of res judicata is notdesirable to ensure speedy disposal of the lis between parties. OrderXIV Rule 2 of the Code had salutary object in mind that mandates theECourt to pronounce judgments on all issues subject to the provisions ofsub-Rule (2). However, in case where the issues of both law and factarise in the same suit and the Court is of the opinion that the case or anypart thereof may be disposed of on an issue of law only, it may try thatsuit first, if it relates to jurisdiction of the Court or a bar to the suitcreated by any law for the time being in force. It is only in thoseFcircumstances that the findings on other issues can be deferred. It is notdisputed that res judicata is a mixed question of law and fact dependingupon the pleadings of the parties, the parties to the suit etc. It is not aplea in law alone or which bars the jurisdiction of the Court or is astatutory bar under clause (b) of sub-Rule (2).G

32. The objective of the provisions of Order XLI Rules 24 and 25is that if evidence is recorded by the learned Trial Court on all the issues,it would facilitate the first Appellate Court to decide the questions offact even by reformulating the issues. It is only when the first AppellateCourt finds that there is no evidence led by the parties, the first AppellateHCourt can call upon the parties to lead evidence on such additional issues, either before the Appellate Court or before the Trial Court. All suchprovisions of law and the amendments are to ensure one objective i.e.,early finality to the lis between the parties.

33. Keeping in view the object of substitution of sub-Rule (2) toavoid the possibility of remanding back the matter after the decision onthe preliminary issues, it is mandated for the trial court under Order XIVRule 2 and Order XX Rule 5, and for the first appellate court in terms ofOrder XLI Rules 24 and 25 to record findings on all the issues.

34. Therefore, the order of the High Court remanding the matterto the learned trial court to frame preliminary issues runs counter to themandate of Order XIV Rule 2 of the Code and thus, not sustainable inlaw. The learned trial court shall record findings on all the issues so thatthe first appellate court has the advantage of the findings so recordedand to obliviate the possibility of remand if the suit is decided only on thepreliminary issue.

35. Consequently, the appeal is allowed. The order passed by theHigh Court is hereby set aside.

Nidhi Jain

Appeal allowed.

(Assisted by : Tamana, LCRA)

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