Mahabir Parshad died By His L.Rs. vs Punjab Saltpetre Refinery Private Ltd.

G.C. Mital, J.

This order will dispose of Regular Second Appeal Nos. 1376 and 1377 of 1976 and Regular First Appeal No. 327 of 1976 as common questions arise therein. Three different plaintiffs, who are appellants in these respective appeals had entered into some agreement with the Punjab Saltpetre Refinery Pvt. Ltd. Chandigarh (hereinafter referred to as ''the Company''). The different plaintiffs filed separate suits against the Company for rendition of accounts and for recovery of the amount found due on the allegations that the plaintiffs supplied saltpetre as detailed in the respective plaints, to the Company for the purposes of getting analysis for purity for the purposes of calculating the rate and amount due. Since the plaintiffs were not in a position to determine the price because the analysis were got to be done by the defendant, rendition of accounts and payment of the amount due was sought.

The defendant contested the suit and raised various pleas. One of the pleas taken was that it was not an accounting party and no suit for rendition of accounts was maintainable. It was also pleaded that the plaintiff intentionally did not sue for specific amount although he knew about the price of the goods because he did not want to pay proper Court fee fully knowing that the suit was not maintainable in that form. On the contest of the parties the trial Court framed the following two preliminary issues :

(1) Whether the suit is maintainable in the present form ?

(2) Whether this Court has no jurisdiction to try this suit ?

Since these issues were treated as preliminary, parties did not lead evidence. The trial Court dismissed all the three suits after recording a finding under issue No. 1 against the plaintiff. It came to the conclusion that the question involved under issue No. 1 would be a mixed question of law and fact and in the absence of evidence the matter could not be decided. Issue No. 2 was decided in favour of the plaintiff since the defendantCompany had its head office at Chandigarh.

In the case in which appeal lay to the High Court, R.F.A. No. 327 of 1976 was filed in this Court and in the other two cases, at the first instance appeals were filed before the District Court. The Additional District Judge dismissed both the appeals and maintained the decision of the trial Court. Hence the two R.S.As. Nos. 1376 and 1377 of 1976 have been filed.

After hearing the learned counsel for the parties and on perusal of the record I am of the view that there has been manifest injustice to the plaintiff in view of the fact that issue Nos. 1 was treated as preliminary. It has been held in Major S.S. Khanna (in both the appeals) v. Brig F.J.Dhillon (in both the appeals), AIR 1964 S.C. 497 as follow :

"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 depends upon the decision of issues of fact, would result in a lopsided trial of the suit."

Once on issue No. 1 no decision could be taken in the absence of evidence, as rightly found by the Court below, the parties should have been allowed to lead evidence. They failed to produce evidence under the impression that issue No. 1 was being treated as preliminary issue. In view of Major S.S. Khanna''s case (supra) a preliminary issue can be only one which can dispose of the whole suit on question of law in which no evidence would be needed.

Whenever a question is mixed question of fact and law such matter could not be decided as a preliminary issue. Due to the erroneous impression of the counsel for the plaintiff in the trial Court no evidence was led considering issue No. 1 as one of law, the manifest injustice which has been caused to the plaintiff cannot be allowed to be perpetrated.

Counsel for both sides including the Company have frankly conceded that issue No. 1 did require determination of factual matters and on the basis of the findings arrived at on those factual matter the question is to be decided whether the present suit was competent or not. It was the stand of the counsel for the Company that the plaintiffs or his counsel were to be blamed for not adducing evidence in the trial Court. As already observed above under the misapprehension that issue No 1 was a preliminary issue merely relating to point of law, and had to be decided merely on the basis of the allegations in the plaint, the counsel for the plaintiff did not adduce evidence but for such lapse on his part the plaintiff cannot be allowed to suffer. In the interest of justice I am of the opinion that it is a case in which all issues on merits along with issue No.1 deserved to be tried and decided together, according to the dictum of the highest Court reproduced above.

For the reasons recorded above, these appeals are allowed, the judgments and decrees of the Courts below are set aside and the case is remitted to the trial Court under Order 41 Rule 23 C.P.C. with a direction that all issues which arise out of the cases on merits on the basis of the pleadings of the parties should be framed and those issues along with issue No. 1 should be tried and determined in accordance with law. The parties through their counsel are directed to appear before the trial Court on 11th February, 1985. Since the plaintiff or his counsel in the trial Court are not free from blame there will be no order as to costs in these proceedings.

Case remanded.