# Dinesh Chand Pandey v. Shri Narain Pathak and others

- **Citation:** (2010) 3 ILRA 1287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-25
- **Case number:** Civil Revision No. 52 of 2001
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chand-pandey-v-shri-narain-pathak-and-others-41774
- **Pages:** 5

## Headnote

Code of Civil Procedure Order XIV Rule
2 as amended by Act No. 104 of 1976Rule 2 (2)-Preliminary issue-regarding
bar of 22 of U.P. Intermediate Act
1921 and Section 14 of payment of
salary Act-trial Court rejected the
request for decision of preliminary
issue as first-held-Trail Court not
exercised its discretion properly-an
issue
of
law
and
jurisdiction
be
decided first-order passed by Trial
Court set-a-side.

Held: Para 18

In view of the abovesaid facts and
legal position which has been stated
in the preceding paragraphs, and from
a perusal of sub- Rule 2 Order 14 it is
clear that an issue of law may be tried
as a preliminary issue provided it
relates to the jurisdiction of the Court
or to a bar to the suit created by law
for the time being in force.
Case law discussed:
AIR 1988 All 299, 1995 (13) LCD 252, 2009
All. C.J. 1370

## Text

3 All] Dinesh Chand Pandey V. Shri Narain Pathak and others
1287
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2010

BEFORE
THE HON'BLE ANIL KUMAR, J.

Civil Revision No. 52 of 2001

Dinesh Chand Pandey and others

 ...Petitioner
Versus
Shri Narain Pathak and others

 ...Respondent

Counsel for the Petitioner:
Sri U.S. Sahai
Sri D.C. Mukharji

Counsel for the Respondent:
Sri D.C. Mukharjee

Code of Civil Procedure Order XIV Rule
2 as amended by Act No. 104 of 1976Rule 2 (2)-Preliminary issue-regarding
bar of 22 of U.P. Intermediate Act
1921 and Section 14 of payment of
salary Act-trial Court rejected the
request for decision of preliminary
issue as first-held-Trail Court not
exercised its discretion properly-an
issue
of
law
and
jurisdiction
be
decided first-order passed by Trial
Court set-a-side.

Held: Para 18

In view of the abovesaid facts and
legal position which has been stated
in the preceding paragraphs, and from
a perusal of sub- Rule 2 Order 14 it is
clear that an issue of law may be tried
as a preliminary issue provided it
relates to the jurisdiction of the Court
or to a bar to the suit created by law
for the time being in force.
Case law discussed:
AIR 1988 All 299, 1995 (13) LCD 252, 2009
All. C.J. 1370

(Delivered by Hon'ble Anil Kumar, J.)

1. Matter is taken in the revised
cause list.

2. None appeared on behalf of the
answering respondents.

Heard
Sri
U.S.
Sahai,
learned
counsel for the revisionist and perused the
record.

3. Facts in brief as submitted by the
learned counsel for the revisionist are that
initially a regular suit (Suit No. 107 of
1994) filed by plaintiff/O.P. Nos. 1 to 18
in the court of IVth Additional Chief
Judicial
Magistrate/Additional
Civil
Judge (Sr. Div.), Sultanpur in which the
present revisionists are defendants.

4. On the basis of pleadings, the
issues were framed by the trial court and
issue No. 5 and 6 are as under:-

(a) whether the present suit is barred
in view of the provisions as provided
under Section 22 of the U.P. Intermediate
Education Act, 1921.

(b) Whether the present suit is barred
as per the provisions as provided under
Section 14 of Payment of Salaries Act,
1971.

5. The trial court thereafter decided
the abovesaid issues as well as issue No. 7
(whether a suit in question is liable to be
dismissed on the ground of non-joinder of
necessary parties) as preliminary issue
and by means of the impugned order
dated 11.01.2010 has held that the issue
Nos. 5 and 6 are a mixed question of law
and fact, so the same shall be decided
later on and accordingly a request has
1288 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
been made by the defendant-revisionist to
decide the same as preliminary issue has
been rejected Whereas issue No. 7 was
also
decided
against
the
defendant/respondent.

6. Aggrieved by the order dated
11.01.2001, the present revision has been
filed before this Court.

7. Sri U.S. Sahai, learned counsel
for the revisionist while challenging the
impugned
order
submits
that
the
impugned order dated 11.01.2001 passed
by trial court is contrary to law because as
per the provisions as provided under order
14 Rule 2(2) CPC, the trial court has to
decide the issue Nos. 5 and 6 as a
preliminary issue in view of the fact that
the same is based on question of law
because the suit filed by the plaintiff/O.P.
Nos. 1 to 18 is barred as per the
provisions as provided under Section 22
of the U.P. Intermediate Education Act,
1921 read with Section 14 of the Payment
of Salaries Act. So, the same is liable to
be quashed.

8. I have heard Sri U.S. Sahai,
learned counsel for the revisionist and
gone through the record, the sole and
mute question which is to be decided in
the present case whether in view of the
provisions as provided under order 14
Rule 2(2) CPC, the issue Nos. 5 and 6
which has been framed in the instant case
(to the effect that whether the suit in
question is barred by the provisions as
provided under Section 22 of the U.P.
Intermediate Education Act, 1921 and the
suit in question is barred as per the
provisions of Section 14 of the Payment
of Salaries Act, 1971) should be decided
as preliminary issue in view of the
provisions as provided under Order 14
Rule 2(2) CPC and keeping in view the
said fact whether the impugned order
passed by the trial court in the instant case
is in accordance with law or not?

9. In order to adjudicate and decide
the abovesaid question whether a issue is
to be heard and decided as a preliminary
issue by a Court or not, I feel appropriate
to have a glance to the provisions of order
XIV Rule 2 CPC:-

10. Order XIV, Rule 2 of the Code
of Civil Procedure as it stood prior to the
amendment made in the year 1976 read as
follows:--

"R. 2. Where issues both of law and
of fact arise in the same suit, and the
Court is of 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."

11. Under the above provision once
the court came to the conclusion that the
case or any part thereof could be disposed
of on the issues of law only it was obliged
to try those issues first and the other
issues could be taken up only thereafter, if
necessity survived. The court had no
discretion in the matter. This flows from
the use of the word "it shall try those
issues first".

Material change has been brought
about in legal position by amended 0.14,
R. 2 and after the amendment made by
Act 104 of 1976 which came into effect
on 1-2-1977, the Order XIV Rule 2(2)
CPC is as follow:-
3 All] Dinesh Chand Pandey V. Shri Narain Pathak and others
1289

"R. 2(1) Notwithstanding that a case
may be disposed of on a preliminary
issue, the Court shall subject to the
provisions of sub-rule (2), pronounce
judgment on all issues.

(2) Where issues both of law and of
fact arise in the same suit, and the court is
of opinion that the case or any part thereof
may be disposed of on an issue of law
only, it may try that issue first if that issue
relates to

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any
law for the time being in force,

and for that purpose may, if it thinks
fit, postpone the settlement of the other
issues until after that issue."

12. The word "shall" used in old
0.14, R. 2 has been replaced in the present
Rule by the word "may". Thus now it is
discretionary for the Court to decide the
issue of law as a preliminary issue or to
decide it along with the other issues. It is
no longer obligatory for the Court to
decide an issue of law as a preliminary
issue.

13. Another Change brought about
by the amended provision is that not all
issues of law can be decided as
preliminary issues. Only those issues of
law can be decided as preliminary issues
which fell within the ambit of Clauses (a)
and (b) of sub-r. (2) of R.2 of O. 14. Cl.
(a) mentions "jurisdiction of the Court"
and clause (b) deals with "bar to the suit
created by any law for the time being in
force."

14. Thus, Sub-rule (2) leaves
discretion upon the Court. It is not
mandatory on the Court to decide the
question of the jurisdiction or other issues
relating to the maintainability of the suit.
Sub rule (I) of Rule 2 mandates a Court
that not with standing that a case may be
disposed of on a preliminary issue, the
Court shall, subject to the provisions of
sub-rule (2), pronounce judgment on all
issues.

15. The intention of the Legislature is
that instead of prolonging the suit by first
deciding a preliminary issue and thereafter
deciding other issues, be avoided as far as
possible, if all the issues are decided that
may avoid unnecessary multiplicity of the
proceedings in relation to deciding the
preliminary issue. It is open for the Court,
however, in some circumstances if it is
apparently clear that the suit is not
maintainable or barred by jurisdiction, to
dispose of such issue, may decide such
issues as preliminary issue.

16. In the case referred of M/s. Ram
Babu Singhal v. M/s. Digamber Parshad
Kirti Parshad. AIR 1988 All 299. It has
been held in "paragraphs 6" as under:--

"However, when the Court comes to
the conclusion that the question of
jurisdiction of the Court depends upon the
detailed evidence of the parties which are
almost identical with the matter which
relates to other issues in the suit and the
Court comes to the conclusion that this
could not be decided as a preliminary
issue it cannot be said that the Court
committed any error of jurisdiction or
illegality. There is nothing in S. 21, which
makes it mandatory for the Court to decide
the
question
of
jurisdiction
as
a
preliminary issue."
1290 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

17. In the case of Aligarh Muslim
University and others Vs. 8th Additional
District Judge, Aligarh and others 1995
(13) LCD 252 wherein it has been held as
under:-

" In the courts in our country
litigations are pouring in day in & day out
and the courts must exercise their judicial
prudence to dispose of the matters at the
earliest and such objection of the present
nature, as was raised by the defendants in
the suit, should have been taken first
without going at that stage to the exercise
of calling for bundles of documents. I am
not, at this stage, recording any judicial
finding on the necessity or otherwise of the
documents as I feel that the court of the
first instance should have decided the
preliminary issue on the eligibility of Miss.
Gulshan Akhtar which could have ended
the suit at that stage itself, if the objection
was sustained."

In the case of K.G. Plasto Chem (I)
Private
Limited
Vs.
M/s
Tulison
Industrial (Machines) Pvt. Ltd. and
others 2009 All. C.J. 1370, the court in
para Nos. 12, 18 & 22 has held as under:-

"Para 12 - From aforesaid legal
position, it is clear that the Court which
has decided former suit or issue, must have
had jurisdiction to decide former as well as
subsequent suit both, but this rigour of the
provisions of Section 11 of the C.P.C. is
relaxed by Explanation (VIII) attached
with the said section whereby the
applicability of principle of res judicata is
extended to the cases where an issue was
heard and finally decided by a Court of
limited jurisdiction, competent to decide
such issue, despite that such Court of
limited jurisdiction was not competent to
try such subsequent suit or suit in which
such issue has been subsequently raised.

Para 18 - From a plain reading of
Order XIV, Rule 2, C.P.C., it is clear that
Sub-rule (1) of said rule postulates a
general principle that inspite of fact that a
case may be disposed of on a preliminary
issue despite thereof the Court is obliged to
pronounce judgment on all issues but the
aforesaid principle is subject to exception
carved out by Sub-rule (2) of said rule,
which provides that where issues both of
law and of fact arise in the same suit and
the Court is of opinion that the case or any
part thereof may be disposed of on issue of
law alone, it may try that issue of law first
if that issue relates to- (a) the jurisdiction
or the Court ; or (b) a bar to the suit
created by any law for the time being in
force, and for that purpose may, if it thinks
fit, postpone the settlement of the other
issues until after that issue has been
determined, and may deal with the suit in
accordance with the decision on that issue.
Therefore, in my opinion, in order to
satisfy the essentials of Order XIV, Rule 2
(2) the issue of law must be related either
to the jurisdiction of the Court or to a bar
to the suit created by any law for time
being in force and further the Court must
be of opinion that the case or any part
thereof may be disposed on an issue of law
only.

Para 22 - Since another essential
ingredient for operation of provisions of
Order XIV, Rule 2 (2) is that the issue of
law must relate either to the jurisdiction of
Court, or to a bar to the suit created by
any law' for time being in force, therefore,
now next question arises for consideration
as to whether issue of res judicata relates
to the jurisdiction of Court or to a bar to
the suit created by any law for the time
3 All] Chandra Bhan Pratap Singh V. Executive Engineer, Deoria and others
1291
 being in force? In this connection it is
necessary to point out that under the
provisions of Order XIV, Rule 2 (2), C.P.C.
where the issue of law relates to the
jurisdiction of the Court or to a bar to the
suit created by law for instituting the
claim, the same shall be tried as
preliminary issue. Thus the issue of res
judicata must have some material bearing
with the jurisdiction of the court to try
subsequent suit or issue in a subsequent
suit
which
has
been
directly
and
substantially in issue in former suit and
has been heard and finally decided by the
Court having competence to decide such
suit or issue. Therefore, in this manner, the
issue of res judicata, in my considered
opinion, must relate to the jurisdiction of
the Court and also create a bar by law for
time being in force to try a subsequent suit
and thus satisfies the essential ingredients
of Order XIV, Rule 2 (2), C.P.C."

18. In view of the abovesaid facts
and legal position which has been stated in
the preceding paragraphs, and from a
perusal of sub- Rule 2 Order 14 it is clear
that an issue of law may be tried as a
preliminary issue provided it relates to the
jurisdiction of the Court or to a bar to the
suit created by law for the time being in
force.

19. For the foregoing reasons, the
revision is allowed, the impugned order
dated 11.01.2001 passed by trial court is
set aside and the matter is remanded back
to the trial court to decided the issue Nos. 5
and 6 as a preliminary issue after giving
opportunity of hearing of the parties
expeditiously preferably within a period of
three months from the date of receiving of
the certified copy of this order.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 78 of 2003

Chandra Bhan Pratap Singh ...Petitioner
Versus
Executive
Engineer,
Deoria
and
others

 ...Respondents

Counsel for the Petitioner:
Sri Surendra Tewari
Sri Vikas Kumar Mishra

Counsel for the Respondents:
C.S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999- Rule 9-Punishment
without following procedure provided in
Rule 9-suggestion of previous enquiry
officer
regarding
warning-ignored
without recording any reason-change of
enquiry
officer
by
D.M.
(Incharge)
subsequent enquiry report-quantify huge
amount
of
recovery-without
giving
opportunity to the appellant deniei of
enquiry report being confidential recordheld-such approach not only unlawful
but malice in law-Single Judge ignored
this material aspect committed great
error-enquiry
Report
along
with
punishment
quashed-direction
to
conclude fresh enquiry within specified
period given.

Held: Para 25 and 26

Lastly the disagreement appears to be
not recorded in accordance with Rule 9
of the 1999 Rules, inasmuch as, it is
founded on surmises, namely that if the
schemes have been implemented by the
appellant after his suspension then the
guilt is established. There is nothing
indicated in the impugned order about