Ashok vs Dharamwati Devi

Hon'ble Shri Justice S.K. Seth

This petition arises out of a suit for Specific Performance filed by the petitioner. Trial Court by the Order impugned tried and decided Issue No. 4 and 5 as preliminary issues holding that agreement of sale alleged by the plaintiff does not bear proper stamp duty and its registration is mandatory. After hearing rival submissions and going through averments made in the plaint and written-statement, in the considered opinion of this Court, Order impugned is unsustainable in law and this petition deserves to be allowed.

Learned trial Court failed to see and appreciate that in civil proceedings issues are framed only in respect of those material facts which are alleged by one party and denied or not admitted by the other party. One of the important functions of the trial Court is to settle all necessary issues whether of fact or of law, arising out of the pleadings to pinpoint the real and substantial points of difference between the parties before the commencement of the trial. The mere fact that certain allegations are made on one side and denied on the other does not make them "material'' for the purpose of framing of issues. The pitfall of raising issues which do not state the main question but only various subsidiary matters must be avoided otherwise possibility of remand cannot altogether be ruled out. In order to prevent this, by 1976 Amendment Act, Legislature substituted Rule 2 of Order XIV of the CPC. Now the substituted rule provides the Court must give judgment on all issues. The only freedom to try as preliminary issue is in respect of issue of law when it relates to the jurisdiction of the Court or bar of suit (emphasis is added). And the determination of preliminary issue results in disposal of the case or part thereof. These are the only two specific exceptions where the Court may try those issues first as preliminary issues. This aspect of the matter was completely ignored or overlooked by the trial Court. Perusal of the Order impugned does not show that by deciding issue No. 4 and 5 as preliminary issues, the case or part thereof gets disposed off. In view of the legal position, Order impugned is hereby set aside. We make it clear that we have not expressed any opinion on the merits of the case therefore this Order shall not come in the way of the trial Court while deciding issue No. 4 and 5 along with other issues. In the result, the petition is allowed subject to above observations. There shall be no order as to costs. Ordered accordingly.