Santosh Kumar vs Ashok Chand

Santosh Kumar @ Rana Ram Kalal .....Appellant

Versus

Ashok Chand and Others .... Respondents

JUDGMENT

N. V. Ramana, J.

1. The instant appeal, by way of special leave, is directed

against order dated 15.03.2010 passed by the High Court of

Judicature for Rajasthan at Jodhpur in Civil Writ Petition No.

6517 of 2009 whereby the High Court allowed the writ petition

filed by the respondent nos. 1 and 2 herein, and directed the Trial

Court to decide certain issues as preliminary legal issues. Signature Not Verified Digitally signed by

2. A conspectus of the facts necessary for the disposal of the Vishal Anand Date: 2021.02.18 15:26:04 IST Reason:

appeal are as follows: the appellant herein filed a civil suit against

1 the respondents in the year 2007 seeking, inter alia, possession of

the disputed property and a declaration that he is the owner of the

disputed property. The Trial Court, vide order dated 22.04.2008,

framed as many as eleven issues, of which we are concerned

currently with the four issues extracted below:

“iii. Whether as narrated in para 9 and 12 of the plaint, the plaintiff is entitled to take legal possession and to receive rent of the concerned shops from the defendant Nos. 3 to 5?

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vi. Whether as narrated in the Majid Ujrat in the written statements, Smt. Kanta Devi and Nikita on becoming Sadhvis after taking Jain Diksha on 17.2.2000 have suffered civil death, thus no sale deed was executed nor could have been executed by them or by their alleged power of attorney holder, thus the suit of the plaintiff is not legally maintainable as being based on unnecessary and non existent documents?

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viii. Whether as narrated in para 9 of the written statement, this court does not have jurisdiction to hear this suit?

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ix. Whether this suit is liable to be dismissed as being barred by law and being without any cause of action?”

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3. Thereafter, the respondents filed an application under Order

XIV Rule 2, Code of Civil Procedure before the Trial Court seeking

that the above issues be decided as preliminary questions of law.

On 19.05.2009, the Trial Court rejected the application of the

respondents on the ground that the issues raise mixed questions

of fact and law, and therefore require the parties to lead evidence

before the same can be decided.

4. Aggrieved by the order of the Trial Court, the respondent nos.

1 and 2 filed a writ petition before the High Court challenging the

same. Vide the impugned order dated 15.03.2010, the High Court

allowed the writ petition, thereby setting aside the order dated

19.05.2009 passed by the Trial Court, and directed the Trial Court

to decide the above issues as preliminary questions of law.

5. Aggrieved by this order of the High Court, the appellant has

filed the present civil appeal, by way of special leave.

6. The learned counsel for the appellant submits that the High

Court erred in directing the Trial Court to decide the issues in

question as preliminary issues of law when they related to mixed

questions of law and fact. Further, the learned counsel for the

3 appellant also submits that the High Court, in its impugned order,

has passed certain observations on the legal issues involved which

would adversely affect his suit.

7. On the other hand, the learned counsel for the respondents

submits that the impugned judgment of the High Court does not

merit any interference by this Court in its jurisdiction under

Article 136 of the Constitution. They submit that no prejudice is

caused to the appellant by the impugned order. The counsel

further submits that although there is no stay of trial, it has still

not concluded despite the fact that the suit was filed as far back as

in 2007.

8. Heard counsel for the parties at length.

9. While the counsel for the appellant strenuously submitted

that the issues involved mixed questions of fact and law, he was

unable to produce any material to substantiate the same. On the

other hand, it appears that the appellant’s claim is based on

documents executed by a power of attorney holder, as per his own

plaint. Further, he has also admitted that the original owners had

taken “Jain Diksha” and become “Sadhvis”. In such a

4 circumstance, the approach of the High Court in directing the

above framed issues to be decided as preliminary questions of law

cannot be said to be incorrect. The learned counsel for the

respondents has rightly pointed out that all the above framed

issues relate to maintainability of the suit. Further, on being

questioned by the Bench, the learned counsel for the appellant

could not point to any prejudice that would be caused if the issues

are taken up and decided by the Trial Court as preliminary

questions of law.

10. Having said that, we are inclined to agree with the

submission of the counsel for the appellant that some of the

observations of the High Court in the impugned order may

adversely affect his case before the Trial Court. Certain stray

observations of the High Court, particularly in paragraphs 5 and 7

of the impugned order, appear to prejudge the issues at hand.

11. We are therefore not inclined to interfere with the impugned

order dated 15.03.2010 passed by the High Court, except to the

extent of directing the Trial Court to decide the issues at hand,

and the suit, without being influenced by any observations made

by the High Court.

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12. Keeping in mind the submission of the counsel for the parties

that the present trial has been pending for a long duration, we

direct the Trial Court to decide the matter expeditiously on its own

merits and in accordance with law.

13. The Civil Appeal is, accordingly, disposed of with the above

directions. Stay on operation of the impugned order, directed vide

this Court’s orders dated 07.05.2010/12.05.2010 and 01.07.2013,

stands vacated.

.........................J. (N.V. RAMANA)

.........................J. (SURYA KANT)

..........................J. (ANIRUDDHA BOSE) NEW DELHI;

FEBRUARY 02, 2021.

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