# Pramod Khandelwal Revisionist v. Vinod Khandelwal & Ors

- **Citation:** (2022) 11 ILRA 434
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-23
- **Case number:** Civil Revision No. 303 of 2013
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-khandelwal-revisionist-v-vinod-khandelwal-ors-47836
- **Pages:** 6

## Headnote

Law
-

Code
of
Civil
Procedure,1908 - Order 7 Rule 11 -
Rejection of Plaint - The Securitisation
and Reconstruction of Financial Assets
and Enforcement of Security Interest
Act, 2002 - Sections 13 (2) & 34 - plea
regarding
jurisdiction
should
be
decided as preliminary issue - issue of
law can be decided as a preliminary
issue only where it is such that a
decision
does
not
necessitate
investigation into facts - it relates
either to jurisdiction of the Court or to
the
suit
being
barred
under
any
prevailing law. (Para -21,22)

(B)
Civil
Law
-
Code
of
Civil
Procedure,1908 - Order 14 Rule 2 -
when the question of jurisdiction is
exclusively involved which does not
require any investigation of fact and
the same can be decided on the basis
of pleadings without any evidence -
trial Court can decide the said issue as
preliminary issue - Jurisdiction vested
under
Order
14
Rule
2
C.P.C.
is
discretionary and not mandatory. (Para
- 17,19)
Sale deed executed by defendant/respondent
no.1 in favour of defendant/respondent no.3 -
Suit instituted by plaintiff/respondent no.1 -
cancellation of sale deed - ground - exclusive
owner of property in question - application filed
under
Order
7
Rule
11
C.P.C.
by
revisionist/defendant no.1- contention - sale
deed has been executed under Section 13(2) of
SECURITISATION
ACT,
2002
-
case
for
cancellation of sale deed - pending before the
Debt Recovery Tribunal - suit before trial Court
not maintainable and is barred - trial court
refused to reject plaint under Order 7 Rule 11
C.P.C. - question of jurisdiction is mixed
question of fact and law - power under Order 7
Rule 11 not exercisable.(Para - 2,3,4,13,14)

HELD:-Issue involved is a mixed question of
fact and law which requires appreciation of
evidence in support of the pleadings on record.
Trial Court not committed any jurisdictional
error in dismissing the said application. (Para -
18 )

Revision dismissed. (E-7)

List of Cases cited:-

## Text

434 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 11 ILRA 434
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Civil Revision No. 303 of 2013

Pramod Khandelwal ...Revisionist
Versus
Vinod Khandelwal & Ors.
 ... Opposite Parties

Counsel for the Revisionist:
Sri A.K. Goyal

Counsel for the Opposite Parties:
Sri Siddhartha Srivastava

(A)
Civil
Law
-

Code
of
Civil
Procedure,1908 - Order 7 Rule 11 -
Rejection of Plaint - The Securitisation
and Reconstruction of Financial Assets
and Enforcement of Security Interest
Act, 2002 - Sections 13 (2) & 34 - plea
regarding
jurisdiction
should
be
decided as preliminary issue - issue of
law can be decided as a preliminary
issue only where it is such that a
decision
does
not
necessitate
investigation into facts - it relates
either to jurisdiction of the Court or to
the
suit
being
barred
under
any
prevailing law. (Para -21,22)

(B)
Civil
Law
-
Code
of
Civil
Procedure,1908 - Order 14 Rule 2 -
when the question of jurisdiction is
exclusively involved which does not
require any investigation of fact and
the same can be decided on the basis
of pleadings without any evidence -
trial Court can decide the said issue as
preliminary issue - Jurisdiction vested
under
Order
14
Rule
2
C.P.C.
is
discretionary and not mandatory. (Para
- 17,19)
Sale deed executed by defendant/respondent
no.1 in favour of defendant/respondent no.3 -
Suit instituted by plaintiff/respondent no.1 -
cancellation of sale deed - ground - exclusive
owner of property in question - application filed
under
Order
7
Rule
11
C.P.C.
by
revisionist/defendant no.1- contention - sale
deed has been executed under Section 13(2) of
SECURITISATION
ACT,
2002
-
case
for
cancellation of sale deed - pending before the
Debt Recovery Tribunal - suit before trial Court
not maintainable and is barred - trial court
refused to reject plaint under Order 7 Rule 11
C.P.C. - question of jurisdiction is mixed
question of fact and law - power under Order 7
Rule 11 not exercisable.(Para - 2,3,4,13,14)

HELD:-Issue involved is a mixed question of
fact and law which requires appreciation of
evidence in support of the pleadings on record.
Trial Court not committed any jurisdictional
error in dismissing the said application. (Para -
18 )

Revision dismissed. (E-7)

List of Cases cited:-

1. Manager, Bettiah Estate Vs Bhagwati Saran
Singh & ors., 1992 (2) AWC 1233

2. Mrs. Shahnaz Husain & ors. Vs Mohd. Yunus
& ors., 1993 (1) ACJ 216

3. Smt. Subhash Bhalla & anr. Vs Smt. Jai Devi
& anr., 2008 All. C.J.7732010 (78) ALR 755

4. Dhampur Sugar Mills Ltd. & anr. Vs Rajeev
Sinha

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri A.K. Goyal, learned
counsel for the revisionist/ defendant and
Sri Siddharth Srivastava, learned counsel
for plaintiff/respondent no.1.

2. The plaintiff/respondent no.1
instituted a suit for cancellation of sale
deed
dated
30.03.2009
executed
by
defendant/respondent no.1 in favour of
11 All. Pramod Khandelwal Vs. Vinod Khandelwal & Ors.
435
defendant/respondent no.3. The suit was
instituted on the ground that the plaintiff/
respondent no.1 is the owner of the
property in dispute and sale deed has been
illegally
executed
by
the
defendant/
respondent no.1 in favour of defendant/
respondent no.3.

3. In the suit, an application under
Order 7 Rule 11 C.P.C. was filed by the
revisionist/defendant no.1 contending interalia that the suit is barred as the sale deed
has been executed under Section 13 (2) of
the Securitisation and Reconstruction of
Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter
referred to as 'SECURITISATION ACT,
2002') and a case for cancellation of sale
deed is registered as Case No.67 of 2008 is
pending
before
the
Debt
Recovery
Tribunal.

4. The trial Court by order dated
01.09.2021 rejected the said application
holding that the question whether the suit is
barred is mixed question of fact and law,
therefore, prima facie it appears that the
power under Order 7 Rule 11 is not to be
exercised in such a case.

5. After the pleadings have been
exchanged, the trial Court framed as many
as 12 issues. After framing of issues, the
revisionist/defendant filed an application
No.103Ga praying therein that the Issue
Nos. 6, 7 & 10 of the suit may be decided
as preliminary issues. The issues Nos. 6, 7
& 10 reads as under:-

"6. क्या वाद आवश्यक पिकारोिं के ि
बिाये जािे से दूक्षषत है?

7. क्या वाद धारा 10 सी०पी०सी० के
अिंतगणत स्टे होिे योग्य है?

10.क्या इस न्यायालय को वाद की
सुिवाई का िेिाक्षधकार प्राप्त है?"

6. The trial Court found that the
necessary party has been impleaded by the
defendant/respondent no.1 and the original
suit Nos.539 of 2009 & 510 of 2009 have
been clubbed. So far as the question of
jurisdiction framed as Issue No.10 is
concerned, it is a mixed question of fact
and law and can be decided with other
issues. The trial Court further recorded that
the application has been filed to delay the
proceeding as on the last four dates the
defendant/revisionist has sought time to
cross-examine PW1, and thereafter the said
application 103Ga was filed.

7. Challenging the aforesaid order,
learned counsel for the revisionist has
contended that once the question of
jurisdiction arises and suit is exclusively
barred
by
Section
34
of
the
SECURITISATION ACT, 2002, it is
incumbent upon the trial Court under Order
14 Rule 2 C.P.C. to decide the question of
jurisdiction first so that the proceedings
may not prolong unnecessarily and the
revisionist may not suffer harassment.

8. It is contended that from the
reading
of
Section
34
of
the
SECURITISATION ACT, 2002, it is
evident that suit is exclusively barred and
as no question of fact is involved and only
question
of
jurisdiction
is
involved,
therefore, the trial Court ought to have
decided the Issue No.10 as preliminary
issue. He submits that provision under
Order 14 Rule 2 C.P.C. which provides for
decision
of
issue
on
jurisdiction
is
mandatory and the Court below has to
follow the said provision and decide the
said issue first as preliminary issue.

9. In support of his argument, he has
placed reliance in the case of Manager,
Bettiah Estate Vs. Bhagwati Saran Singh
436 INDIAN LAW REPORTS ALLAHABAD SERIES
and other, 1992 (2) AWC 1233 & Mrs.
Shahnaz Husain and Other Vs. Mohd.
Yunus & Other, 1993 (1) ACJ 216 & Smt.
Subhash Bhalla and another Vs. Smt. Jai
Devi and another, 2008 All. C.J.773.

10. Per contra, learned counsel for the
plaintiff/respondent contends that almost on
identical plea, an application under Order 7
Rule 11 C.P.C. was filed wherein it was
alleged that as the sale deed has been
executed under Section 13(2) of the
SECURITISATION ACT, 2002, therefore,
the suit is barred. He submits that while
deciding the application under Order 7 Rule
11 C.P.C. the trial Court has returned a
specific
finding
that
the
question
of
jurisdiction involved in the case is a mixed
question of fact and law and cannot be looked
into at this stage. He submits that the finding
returned by the Court below on application
under Order 7 Rule 11 Cr.P.C. is binding and
as the question of jurisdiction involved in the
instant case is a mixed question of fact and
law, therefore, the same cannot be decided as
a preliminary issue and can be decided only
after the parties lead evidence.

11. It is further contended that provision
under Order 14 Rule 2 C.P.C. is only
directory and not mandatory and the trial
Court is at discretion given in the facts of the
case to decide the said issue as preliminary
issue or with other issues. In support of his
contention, he has placed reliance upon the
case reported in 2010 (78) ALR 755,
Dhampur Sugar Mills Ltd. and another Vs.
Rajeev Sinha.

12. Having considered the submissions
advanced by learned counsel for the parties
and perused the record.

13. It transpires from the record that
the suit has been instituted by the
plaintiff/respondent no.1 for cancellation of
sale deed dated 30.03.2009 on the ground
that he is the exclusive owner of the
property in question. In the said suit, an
application under Order 7 Rule 11 C.P.C.
was filed contending inter alia that as the
sale deed had been executed under Section
13(2) of the SECURITISATION ACT,
2002, therefore, the suit before the trial
Court is not maintainable and is barred .

14. The trial Court recorded a finding
that whether the suit is barred, is a mixed
question of fact and law in the instant case
and accordingly, it refused to reject the plaint
under Order 7 Rule 11 C.P.C. The order of
the trial Court dated 01.09.2021 rejecting the
application under Order 7 Rule 11 has not
been assailed by the revisionist and has
attained finality.

15. After the pleadings have been
exchanged, the issues have been framed.

16. Learned counsel for the revisionist
has urged the contention only as regards the
Issue No.10. He submits that the trial Court
while rejecting the application of the
revisionist to decide the Issue No.10 as
preliminary issue recorded a specific finding
that it is a mixed question of fact and law and
has relied upon the order of the trial Court
dated 01.09.2021 whereby the trial Court has
refused to entertain the application under
Order 7 Rule 11 on the same ground. The
trial Court further noticed that application
103Ga has been filed only to delay the
proceedings as on previous four dates
defendant/revisionist has sought time to
cross-examine the PW1 and instead of crossexamining the PW1, an application to decide
the preliminary Issue No.10 was filed.

17. Perusal of Order 14 Rule 2 C.P.C.
indicates that it is only when the question of
11 All. Pramod Khandelwal Vs. Vinod Khandelwal & Ors.
437
jurisdiction is exclusively involved which
does not require any investigation of fact and
the same can be decided on the basis of
pleadings without any evidence, the trial
Court can decide the said issue as preliminary
issue. The object of incorporating such
provision is manifest that if suit can be
concluded on the basis of one issue, the
parties should not be harassed in protracted
and prolong litigation.

18. In the instant case, the finding
returned by the trial Court while rejecting the
application is that the issue involved is a
mixed question of fact and law which
requires appreciation of evidence in support
of the pleadings on record. This Court finds
that the trial Court has not committed any
jurisdictional error in dismissing the said
application.

19. This Court also in the case of 2010
(78) ALR 755 in Para-4 has held that
jurisdiction vested under Order 14 Rule 2
C.P.C. is discretionary and not mandatory.
Para-4 of the said judgement reproduced
herein-below:-

"4.
The
short
question
for
determination of this revision is whether the
impugned order suffers from jurisdictional
error and can be interfered with in this
revision. In order to reach to the right
conclusion, it is necessary to go through the
provisions of Order XIV Rule 2 C.P.C. and as
amended vide Code of Civil Procedure
Amendment Act, 1976 w.e.f. 1.12.1977, which
reads as under:

" Rule-2. Court to pronounce
judgment on all issues (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 has been determined, and may deal with
the suit in accordance with the decision on
that issue."

It reveals from the perusal of the
Order XXIV Rule 2 C.P.C., quoted above that
it is within the discretion of the court to
decide which issue he should decide as
preliminary issue and it is not mandatory for
the court to decide the issue of jurisdiction or
issue relating to maintainability of the suit as
preliminary issue.

Sub-rule (1) of Rule 2 mandates the
Court that notwithstanding that a case may
be disposed of on preliminary issue, the
Court shall, subject to the provisions of Subrule (2), pronounce judgment on all issues.
Order XXIV, Rule 2 of the C.P.C. was
amended vide CPC (Amendment) Act, 1976
w.e.f. 1.2.1977 making it discretionary for the
Court to decide the preliminary issues after
taking evidence along with other issues.
Thus, the intention of Legislature is clear 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 at a
time that may avoid unnecessary delay and
multiplicity of the proceedings in relation to
the deciding the preliminary issue. "

20. Now, paras-9,10, 11, & 12 of
Manager, Bettiah Estate (supra) on which
reliance has been placed by the learned
438 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the revisionist are being
reproduced herein-below:-

"9. From the perusal of the
amended provision of Rule 2 it will be
clearly seen that now there are only two
categories of issues which can be decided
as preliminary issues.

Those issues of law as relate to
(a) jurisdiction, of the Court or (b) to the
bar to the suit created by any law for the
time being in force. Apart from the above
no other issue can now be decided as
preliminary, a fortiori no issue of fact or a
mixed issue of fact and law can be, decided
as preliminary issue and consequently such
issues must be left to be decided along with
the rest of the issues. The object of this
obviously is avoidance of piecemeal trial
and abridging protracted litigation.

10. On comparison of the earlier
rule and the present one will indicate that
previously the categorisation was between
issue of law and fact only and it was
mandatory for the court to decide all issues
of law in the first instance. On the contrary
under the amended rule the mandate to the
Court is to pronounce the judgment on all
the issues raised subject to the provision of
sub-rule (2), notwithstanding the fact that
the disposal of one preliminary issue may
result in the disposal of the whole suit. The
only exception carved out by sub-rule (2) is
to confer discretion upon the Court that it
may dispose of an issue of law as a
preliminary issue if, in its opinion, it can
dispose of the whole suit subject to further
limitation that the issue of law must either
be as to the jurisdiction of the Court or as
to the bar of any law to the suit. The use of
expression "on issue of law only" has its
own significance which cannot be ignored.
Amended provision has thus drastically
changed the earlier notion that all issues of
law have to be disposed of at the initial
stage before the trial. Now the Courts
power to dispose of an issue of law as
preliminary issue has been considerably
restricted.

11. The rule however, does not
give any arbitrary or unbridled power to
the Court. The discretion in this regard has
to be exercised in a judicious manner. In
fact the discretion to try a preliminary issue
of law relating to jurisdiction or bar to the
suit should be exercised only when it is so
clear that the decision will dispose of the
suit finally and once for all without the
necessity of recording any evidence. If
there be any necessity to refer to any
authority on the question it will suffice to
mention AIR 1980 Delhi, 122, Oriental
Travels Pvt. Ltd. v. State Transport
Authority and AIR 1979 MP 153.

12. To sum up the legal position
appears to us to be as under:

Only an issue of law can be
decided as a preliminary only where it is
such that its decision does not necessitate
investigation into facts and it relates either
to the jurisdiction of the Court or to the suit
being barred under any prevailing law, and
that, in the opinion of the court the decision
of the issue will, result in the decision of
the whole or a part of the suit. The
discretion in this regard must always be
exercised on the basis of sound judicial
principles. It may however, be made clear
that even if an issue of law can be decided
as a preliminary issue as aforesaid the
Court is not always bound to decide it as a
preliminary issue and can in its discretion,
postpone its decision also along with other
issues whether of law or fact. The whole
purpose behind the amended provision is to
restrict
piecemeal
decision
and
unnecessary
multi-tier
appeals
at
intermediate stages on preliminary issue
alone and thus avoid procrastination of
litigation. The new provision justly aims at
11 All. Smt. Shiela Gupta Vs. State of U.P. & Anr.
439
abridging the proceeding in the suit rather
than permitting prolongation thereof."

21. Reading of para-12 of the above
judgement discloses that the Division
Bench has categorically held that the issue
of law can be decided as a preliminary
issue only where it is such that a decision
does not necessitate investigation into facts
and it relates either to jurisdiction of the
Court or to the suit being barred under any
prevailing law. The said observation in the
judgement supports the contention of the
plaintiff/respondent no.1 and, thus, the said
judgement does not come in the aid of the
revisionist as the trial Court in the instant
case is of the opinion that question of
jurisdiction in the instant case is a mixed
question of fact and law.

22. The another judgement, i.e., Mrs.
Shahnaz Husain (supra) relied upon by the
learned counsel for the revisionist is also of
no help to the revisionist as in the said case
also this Court had held that the plea
regarding jurisdiction should be decided as
preliminary issue. In the instant case, such
proposition of law does not apply in view
of the finding returned by the trial Court.

23. So far as the third judgement, i.e.,
Smt. Subhash Bhalla (supra) relied upon
by the learned counsel for the revisionist is
concerned, the same is also not applicable
in the facts of the present case as in the said
case, the Court was considering the scope
of Order 7 Rule 11 C.P.C. and Order 14
Rule 2 (2) C.P.C.

24. Thus, for the reasons given above,
this Court finds that the revision lacks
merit. It is accordingly, dismissed with no
order as to costs.
----------
(2022) 11 ILRA 439
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Application U/S 482 No. 11657 of
2022

Smt. Shiela Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dileep Kumar Pandey

Counsel for the Opposite Parties:
G.A., Sri Swetashwa Agarwal, Sri Srijan
Pandey

(A) Criminal Law - Indian Penal Code,
1860 - Sections 406, 120-B, 420, 467, 468
& 471 - The Code of criminal procedure,
1973 - Section 482 - Inherent power -
when on the basis of evidence on record,
prima facie a case is made out and
ingredients thereof are present, Court
cannot exercise inherent powers which
will cause sudden death of criminal
proceedings.(Para -17 )

Dispute
arising
out
of
a
Committee
of
Management of Maternity Hospital - under
Jaswant Rai Churamani Trust Society - new
Management Committee took over - applicant in
connivance
with
other
accused
persons
prepared a lease deed - misrepresenting herself
to be a trustee of said hospital - delay of six
years in lodging an F.I.R. - applicant aggrieved
by criminal proceedings, charge sheet and its
cognizance - hence application.(Para - 2,3,13)

HELD:-Prima
facie
case
made
out
and
ingredients thereof are present. Facts and
circumstances of case do not fall under category
that '' allegations are frivolous' or ''do not
disclose any offence' and therefore, it does not
fall under ''exceptionally rare cases' wherein