SARANPAL KAUR ANAND v. PRADUMAN SINGH CHANDHOK AND OTHERS

A 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 depend upon the decision of issues of fact, would result in a lopsided trial of the suit.” Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.” 19) The issue of limitation has not been considered to be a pure question of law to be decided as a preliminary issue under Order XIV Rule 2 of CPC, by three Judge Bench of this Court in case of Nusli Neville Wadia Vs. Ivory Properties12. In the said case, a reference was made to the three Judge Bench with respect to the interpretation of the provisions contained in section 9 A of CPC as inserted by the Maharashtra Amendment Act, 1977 and the court held that the provisions contained in section 3 read with sections 4 to 24 of the Limitation Act, 1963 do not provide that the court has no jurisdiction to deal with the matter. It has been further held that so long as the court has the jurisdiction to try the suit, it cannot proceed to dismiss it on the ground of limitation under section 3, and that unless the question is a pure question of law, it cannot be decided as a preliminary issue under Order XIV Rule 2. The Bench further opined that mixed question of law and fact cannot be decided as a preliminary issue under Order XIV Rule 2. The court elaborately dealt with the provisions contained in Order XIV Rule 2 (2) in the light of the Limitation Act and observed as under:-

H 12 (2020) 6 SCC 557

p. 143 Copy page pinpoint

CHANDHOK AND OTHERS [BELA M. TRIVEDI, J.]

“51. - - - - As per Order XIV Rule 1, issues arise when a A material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order XIV Rule 2(2) makes a departure and Court may decide the question of law as to jurisdiction of the Court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

52. In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order XIV Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of F CPC and post amendment in the year 1976.

53. The suit/application which is barred by limitation is not a ground of jurisdiction of the court to entertain a suit. If a plea of adverse possession has been taken under Article 65 of the Limitation Act, in case it is successfully proved on facts; the suit has to be G dismissed. However, it is not the lack of the jurisdiction of the Court that suit has to be dismissed on the ground of limitation, but proof of adverse possession for 12 years then the suit would be barred by limitation such question as to limitation cannot be decided as a preliminary issue. …….. H

p. 144 Copy page pinpoint

A 55. Reliance has been placed on the provisions of Section 3 of the Limitation Act to submit that the Court cannot proceed with the suit which is barred by limitation although limitation has not been set up as a defence. No doubt about it that Section 3 of the Act provides that subject to the provisions contained in Section 4 and 24 of the Limitation Act, every suit instituted, appeal preferred, B and the application made after the prescribed period shall be dismissed, it nowhere provides that Court has no jurisdiction to deal with the matter. Until and unless Court has the jurisdiction, it cannot proceed to dismiss it on the ground of limitation under Section 3.” C 20) From the afore-stated decisions of this Court, there remains no shadow of doubt that a plea of limitation cannot be decided as an abstract principle of law divorced from the facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation being mixed question of law and fact cannot be decided as a preliminary issue under Order XIV, Rule 2(2). 21) Now, so far as pronouncing a judgement on admission under Order XII Rule 6 is concerned, again the law is well settled that for an admission to qualify as a valid admission, it necessarily has to be an unequivocal, unambiguous and unconditional. Considering the objects and reasons for amending Order XII, Rule 6, it has been held in case of Uttam Singh Dugal & Co. Ltd. Vs. United Bank of India & Ors13. that:- “10. As to the object of the Order XII Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply

13 H 2000 (4) RCR Civil 89

p. 145 Copy page pinpoint

CHANDHOK AND OTHERS [BELA M. TRIVEDI, J.]

and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.” 22) In the case of Himani Alloys Ltd. Vs. Tata Steel Ltd.14, it has been categorically observed that the admission made by the party should be clear, unambiguous and unconditional and the court should exercise its judicial discretion on examination of facts and circumstances of the case. Para 10 thereof reads as under:- “10. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order XII Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short, the discretion should be used only when there is a clear “admission” which can be acted upon. (See E also Uttam Singh Duggal & Co. Ltd. Vs. united Bank of India [2000 (7) SCC 120], Karam Kapahi Vs. Lal Chand public Charitable Trust [2010 (4) SCC 753] and Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha [2010 (6) SCC 601].” 23) Though the learned senior Advocate Mr. Patwalia for the respondents has placed heavy reliance on the decision in case of Karam Kapahi & Ors Vs. M/S Lal Chand Public Charitable Trust15 and in case of Charanjit Lal Mehra & Ors Vs. Smt. Kamal Saroj Mahajan & Anr16, they are hardly helpful to the respondents. There cannot be any disagreement to the proposition of law laid down in the said judgments that the principle behind Order XII, Rule 6 is to give the plaintiff a right to speedy judgment. As such, under this Rule, either party may get rid of

14 2011 (3) Civil Court Cases 721 15 (2010) 4 SCC 753 16 (2005) 11 SCC 279 H

p. 146 Copy page pinpoint

A so much of the rival claims about which there is no controversy. Even the admissions made by the parties to the interrogatories and recorded by the court as contemplated in Order X CPC also could be taken into consideration, nonetheless Order XII, Rule 6 could be resorted to only when there is clear and unambiguous admission of facts, and not otherwise. The said Rule 6 also could not be invoked by the Appellate Court suo B moto in the Appeal, when the trial court had not dealt with such issue, and had rejected the plaint under Order VII, Rule 11(d) CPC. 24) So far as the facts of the present case are concerned, as stated earlier the Single Bench had rejected the plaint under Order VII Rule 11(d) after framing a preliminary issue under Order XIV Rule 2(2) C of CPC. The Single Bench after taking into consideration the written statement and other documents held that the suit was barred by law of Limitation and rejected the plaint under Order VII, Rule 11(d) CPC. Apart from the fact that no preliminary issue could have been framed under Order XIV, Rule 2(2) with regard to the issue of limitation which was a mixed question of law and fact, the Single Bench erroneously considered the written statement and the documents filed by the defendant while rejecting the plaint under Order VII Rule 11(d) of CPC. The Division Bench also fallaciously referred to the contentions raised in the written statement and referred to the documents namely CM Applications filed in some eviction proceedings, which were neither referred to in the plaint nor annexed to the plaint. The Division Bench further erroneously relied upon some statements made in the legal notices dated 10.10.2008 and 24.10.2008 construing them as an admission on the part of the plaintiff for passing judgment under Order XII, Rule 6 against the plaintiff, while confirming the order passed by the Single Bench rejecting the plaint of the plaintiff under Order VII, Rule 11(d) CPC. In the opinion of the Court there was no clear, unambiguous and unconditional admission made by the plaintiff in any of the said legal notices which could be termed as an admission of the claim made by the defendant with regard to the knowledge of the plaintiff in respect of the execution of the alleged sale deeds. On the contrary, the plaintiff had pleaded fraud committed against her and other defendants who were the legal representatives of Smt. Harbans Kaur. The Court at this juncture is not inclined to go into the merits of the issues involved in the suit. Suffice it to say that the Single Bench and the Division Bench have passed the impugned orders de hors the specific provisions of CPC and in utter disregard of the position of law settled by this Court.

p. 147 Copy page pinpoint

CHANDHOK AND OTHERS [BELA M. TRIVEDI, J.]

25. Even if, the Single Bench had found that the suit was filed misusing the process of law or that an illusion was created with regard to the cause of action by clever drafting, in that case also Order VII Rule 11 could not have been resorted to. As held by Supreme Court in a well-known case of T. Arivandandam Vs. T.V. Satyapal & Anr.17, the powers under Order VII Rule 11 of CPC have to be exercised taking care to see that the ground mentioned therein is fulfilled. It is further held therein that if clever drafting has created an illusion of a cause of action, the Court should nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC. 26) It is also a trite law that the inherent jurisdiction under Section 151 CPC cannot be exercised to nullify the provisions of the CPC. The C inherent powers of the court are in addition to the powers specifically conferred on the court by the Code, and cannot be exercised in a manner which will be contrary or different from the procedure expressly provided in the Code. The scope of Section 151 was considered by this Court as back as in 1964 in case of Arjun Singh Vs. Mohindra Kumar & Ors18, D in which it was aptly held as under:- “It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a Particular topic and they expressly or by necessary implication exhaust the scope E of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code.”

27Copy pinpoint27. In that view of the matter, the scope, ambit and parameters for deciding an application for rejection of the plaint under Order VII F Rule 11(d), for deciding the preliminary issue on pure question of law under Order XIV Rule 2(2) and for pronouncing a judgment on admission under Order XII Rule 6 being absolutely different and independent of each other, Single Bench and Division Bench were required to strictly adhere to the procedures laid down in the said provisions, and could not have exercised inherent powers or suo moto powers dehors the specific G provisions contained in the Code. The impugned orders passed by the High Court being in utter disregard of the said provisions and of the

17 (1977) 4 SCC 467 18 AIR 1964 SC 993 H

p. 148 Copy page pinpoint

A settled legal position, deserve to be quashed and set aside and are accordingly set aside. The suit is restored on the file of the Single Bench. The Single Bench is directed to proceed with the suit in accordance with law. It is made clear that the Court has not expressed any opinion either on the issue of limitation or on the merits of the suit.

28Copy pinpoint28. The appeal stands allowed.

ORDER In view of the difference of expressed by two separate judgments, C the Registry is directed to place the matter before Hon’ble the Chief Justice of India for appropriate orders/directions.

Nidhi Jain Matter to be placed before Hon’ble CJI (Assisted by : Ajay, LCRA) for orders/directions.