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Judgment
This petition has been filed by the petitioners challenging the order dated 11.08.2016 passed by XI Additional District Judge, Jabalpur rejecting the
application of defendants/ petitioners filed under Order 14 Rule 2 of the Code of Civil Procedure.
As per facts of the case that a Civil Suit has been filed by Smt. Siyabai who later on died and her legal heirs have been brought on record. The Suit
was for declaration and permanent injunction against the defendants/present petitioners alleging that she had not executed power of attorney in favour
of defendant/respondent No.3 herein and as such, declaration has been sought that the sale deed executed in favour of other defendants shall be
declared as null and void.
A written statement was filed by the defendants/present petitioners denying the allegations made in the plaint. Defendant No.5 also filed written
statement stating therein that Smt. Siyabai had executed the power of attorney in his favour and executed the sale deeds, received full sale
consideration and she never wanted to challenge the sale deeds but at the instance of her husband, the Civil Suit has been filed in the name of Smt.
Siyabai whereas, plaint submitted in her name was not signed by her. It was alleged by the defendant No.5 that plaint contained forged and fabricated
signature of Smt. Siyabai and then he moved an application under Section 45 of the Evidence Act for examining the signature of Smt. Siyabai over the
plaint comparing her admitted signature. No reply was filed to the said application. The application was allowed by the Court below and the signature
of Smt. Siyabai of the plaint got examined by the hand writing expert namely Shri K.R. Pillai who submitted his report before the Court below saying
that the signature over the plaint does not tally with the original signature of Smt. Siyabai. Thereafter, an application under Order 14 Rule 5 of the
Code of Civil Procedure was moved for framing additional issue regarding forged and fabricated signature over the plaint and its effect.
As submitted by the petitioners that the said application was allowed vide order dated 06.08.2014 by the Court below and additional issue was framed
in that respect “whether the Suit is maintainable when the plaint and the Vakalatnama filed do not contain the signature of original plaintiffâ€.
After framing the issue, unfortunately the original defendant Smt. Siyabai was died on 06.01.2015 and then her husband Bhagwan Singh Patel has
been substituted in place of original plaintiff Smt. Siyabai. Thereafter, an application has been moved by the defendants/petitioners before the Court
below asking that the additional issue as framed on 06.08.2014 be decided as a preliminary issue and as per the petitioners, the said application has
been allowed vide order dated 24.09.2015 and the Court below has directed that the burden lies upon the plaintiff to prove the said additional issue and
further asked that to determine the said issue, first opinion of hand writing expert be obtained. Hand writing expert namely Shri K.R. Pillai submitted
its report and also appeared before the Court below. He was also examined by the defendants/present petitioners. In his examination, he has admitted
that the signature of Smt. Siyabai over the plaint does not tally with the original signature of Smt. Siyabai. Thereafter, plaintiff was called and he has
submitted that the additional issue framed by the Court cannot be examined and decided as preliminary issue because the facts related with the
additional issue could be proved only after recording the evidence of the parties and such issue cannot be treated to be a preliminary issue and he
further submitted that the opinion of the hand writing expert is not binding and having no binding effect and cannot be made basis for dismissal of
plaint.
 The Court below after hearing the arguments of plaintiff arrived at a conclusion that the issue framed later on as an additional issue cannot be
treated to be a preliminary issue and can also not be decided at preliminary stage and accordingly, application filed under Order 14 Rule 2 was
rejected. The main contention raised by the learned counsel for the petitioners is that the Court once allowed his application called opinion of the hand
writing expert and as per the opinion, signature of Smt. Siyabai was not found over the plaint, the Court below having no right to review its own
decision rejecting the application for deciding the preliminary issue at the very preliminary stage of the Suit.
This Court considering his contention passed an order on 18.08.2017 calling report of concerning Court asking as to why when application earlier
allowed was reconsidered after reviewing the earlier order of the Court. In response to the said order, the concerning Judge submitted its report on
11.09.2017 and report was dated 01.09.2017 in which the concerning Court has explained that after considering the objection of the plaintiff, it was
realised by the Court that the issue framed as an additional issue cannot be treated as a preliminary issue and cannot be decided at the initial stage of
the Suit. He has also apprised that the opinion of the hand writing expert is not binding and issue could be decided only after recording the evidence of
the parties. He has clarified that he has never reviewed its own order passed earlier although, opinion had been taken by him of the hand writing
expert in pursuant to the additional issue framed. Although, he has directed that the said additional issue could be decided after recording the other
witnesses.
Learned counsel for the respondent submits that the Court below has not reviewed its own order but on his objection, the Court has realised that the
issue cannot be treated to be a preliminary issue and cannot be decided at this stage because such issue requires additional evidence and proper
opportunity to the parties to lead evidence. In support of contention of the respondents, he relies upon a decision of Hon’ble Apex Court reported
in (2006) 5 SCC 638 parties being Ramesh B. Desai and others Vs. Bipin Vadilal Mehta and others in which the Hon’ble Apex Court in
paragraph 13 of the judgment has dealt with the scope of sub-rule (2) of Order 14 Rule 2 CPC and has observed that the issue which relates to the
jurisdiction of the Court or a bar to the Suit created by any law for the time being in force has to be treated as a preliminary issue and can be decided
at very inception of the Suit. He has also relied upon a judgment reported in (2015) 6 SCC 412 parties being Foreshore Cooperative Housing Society
Limited Vs. Praveen D. Desaiand others in which also the Supreme Court in paragraph Nos.35 to 38 dealt with the scope of Order 14 Rule 2 of the
Code of Civil Procedure and has retreated the same view which has been laid down in the case of Ramesh B. Desai (supra). Shri Kochar has also
placed reliance over a judgment of this Court reported in 1979 MPLJ 736 parties being Ramdayal Umaromal Vs. Pannalal Jagannathji in which
paragraph Nos.5 and 6 deal with the scope of Order 14 Rule 2 in which the same view has been taken by this Court which has been taken by the
Apex Court in the cases referred hereinabove.
After hearing parties and also examining the records of the case, I am of the opinion that the contention of the petitioners is not correct that the Court
has reviewed its own order and after allowing the application under Order 14 Rule 2 of the Code of Civil Procedure, the same cannot be later on
rejected. From the order impugned, it can be seen that the Court called the opinion of the expert to ascertain whether issue can be decided as a
preliminary issue but after calling the report and examining the same, the Court has realised that the said issue cannot be decided unless other
evidences are recorded and parties especially plaintiffs are given opportunity to lead evidence. Even otherwise, in view of the law cited by the learned
counsel for the respondents and the view taken therein, it is obvious that the issue framed by the Court as an additional issue cannot be treated to be a
preliminary issue and cannot be decided at the very initial stage of the Suit and as such, report of the Court below called by this Court was also taken
note of and the explanation given was considered to be justified.
Thus, there is no substance in the contention raised by the petitioners, therefore, this petition is found without any substance and is hereby dismissed.