# Shoib Ullah and others v. Bhartesh Chandra Jain and another

- **Citation:** (2002) 3 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-18
- **Case number:** First Appeal From Order No. 1673 of 2002
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shoib-ullah-and-others-v-bhartesh-chandra-jain-and-another-40005
- **Pages:** 5

## Headnote

Code of Civil Procedure - Order 43 r. 1
(U)- Desecriation exercised by Trail
Court-
deciding
particular
issue
as
Preliminary issue- being suit barred by
section 67 of the Act- can not be
interfered by the first Appellate Court.

Held- Para 13

The above decisions does not leave any
room for doubt that the Court has
discretion to decide even an issue of law
with other issues and it is not obligatory
on the Trail Court to decide an issue of
law on which the case may be disposed
of as preliminary issue. However, these
authorities are absolutely of no help to
the plaintiff respondent no. 1. The
reason is that in this case the Trial Court
exercised discretion in favour of the
appellants and decided an issue of law as
preliminary issue. It has also recorded a
finding on that preliminary issue against
the opposite party no. 1. Therefore, there
can be no reason for the first appellate
court to interfere in the discretion of the
trial court.
Case law discussed
AIR 1991 Alld. 89
AIR 1988 Alld-299

## Text

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806 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
problem. This has been rejected only on
the ground that no documentary proof for
his suffering of the above disability since
November, 1987 has been produced by
the petitioner.

12. The petitioner was suffering from
1987 loss of memory. He got treatment in
1995 after being find by the family
members in a band of Sadhus, hence
rejection of petition was irrational and on
irrelevant grounds.

13. From the aforesaid facts, it is
established that the petitioner is not at
fault
or
guilty
of
desertion.
The
respondents have proceeded in the case of
the petitioner without application of mind
in a very harsh perverse and the petitioner
is not a deserter.

14. In view of the above, the writ
petition succeeds and is allowed. The
impugned order dated 19th July, 1995 is
quashed. The respondents are directed to
pay all the retiral benefits to which the
petitioner would have been entitled had he
not been declared as a deserter. No order
as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.9.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

First Appeal From Order No. 1673 of 2002

Shoib Ullah and others
...Appellants
Versus
Bhartesh Chandra Jain and another

 ...Respondent
Counsel for the Appellant:
Sri Vishnu Gupta

Counsel for the Respondents:
Sri Sidheshwari Prasad
Sri Someshwari Prasad
Sri A.S. Dubey

Code of Civil Procedure - Order 43 r. 1
(U)- Desecriation exercised by Trail
Court-
deciding
particular
issue
as
Preliminary issue- being suit barred by
section 67 of the Act- can not be
interfered by the first Appellate Court.

Held- Para 13

The above decisions does not leave any
room for doubt that the Court has
discretion to decide even an issue of law
with other issues and it is not obligatory
on the Trail Court to decide an issue of
law on which the case may be disposed
of as preliminary issue. However, these
authorities are absolutely of no help to
the plaintiff respondent no. 1. The
reason is that in this case the Trial Court
exercised discretion in favour of the
appellants and decided an issue of law as
preliminary issue. It has also recorded a
finding on that preliminary issue against
the opposite party no. 1. Therefore, there
can be no reason for the first appellate
court to interfere in the discretion of the
trial court.
Case law discussed
AIR 1991 Alld. 89
AIR 1988 Alld-299

(Delivered by Hon'ble B.K. Rathi, J.)

1. This First appeal from order under
Order 43 Rule 1 (U) of C.P.C. has been
preferred
against
the
order
dated
16.7.2002 passed by VIIth Additional
District Judge, Allahabad in Civil Appeal
No. 27 of 2000. The facts necessary for
the disposal of this Appeal are as follows .

2. The respondent no. 1 filed the
Suit No. 550 of 1998 in the Court of Civil
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3 All] Soib Ullah and others V. Bhartesh Chandra Jain and another 807
Judge (Senior Division), Allahabad for
the following reliefs :

(1) Decree for accounting of the firm
M/s S.U. Builders
(2) Mandatory injunction to restrain
the respondents 3 to 6 from taking
any payment from respondent no.
1.

3. The present appellants contested
the Suit. One of the pleas taken by them is
that firm M/s S.U. Builders is an un-
registered firm and therefore, the suit is
barred under section 69 of the Indian
Partnership Act ( hereinafter referred to as
'the Act'). The Trial Court framed an issue
on this plea and recorded finding on
19.2.2001 that the suit is barred by section
69 of the Act and therefore, dismissed the
suit. Aggrieved by the order the plaintiff-
respondent no. 1 filed a Civil Appeal No.
27 of 2001 which has been allowed by the
impugned order and wherein it has been
held that the suit is maintainable so far as
the relief of accounting which is relief no.
1 in the plaint but is not maintainable for
relief no. 2.

4. Aggrieved by it the present
F.A.F.O. has been preferred by the
defendants appellant. No appeal has been
filed by the plaintiff against finding that
suit is not maintainable for relief no. 2.

5. I have heard Sri Vishnu Gupta,
learned counsel for the appellants and Sri
Sidheshwari
Prasad
learned
Senior
Advocate assisted by Sri Someshwari
Prasad for the plaintiff-opposite party no.
1.

6. From the arguments of the learned
counsel the first question that arise for
decision is whether the suit is barred by
provisions of Section 69 of the Act for
relief 1 as well. The bar has been
provided for the suit by Clause (1) of
Section 69. However, in Clause (3) there
is an exception, which has been relied
upon by the appellate court, the relevant
portion of which is extracted below :

"Clause (3): The provisions of sub
sections (1) and (2) shall apply also to a
claim to set off or other proceeding to
enforce a right arising from the contract,
but shall not affect--

(a) the enforcement of any right to sue
for the dissolution of a firm or for
accounts of dissolved firm, or any right or
power to realize the property of a
dissolved firm, or
(b) ..........

7. After carefully considering, the
above provision I am of the view that the
present suit for accounting of the
dissolved firm is not covered by the
exception. Therefore the suit is barred by
clause (1) of the Section 69 of the Act.

8. The learned counsel for the
opposite parties has referred to the
decision of Krishna Motor Service Vs.
H.B. Vittala Kaamath (1996) 10 Supreme
Court Cases page 88. In this case the apex
court was considering the application for
reference of dispute under section 20 of
the Arbitration Act. This case, therefore,
is not applicable to the facts of the present
case.

9. The learned counsel for the
respondent no. 1 has defended the order
by going through the order and the
observation of the appellate court that the
issue involved both the question of fact
and law. It is argued that as it is a mixed
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808 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
question of fact and law therefore, it is
proper that this issue be decided at the
final decision of the suit and should not be
decided as a preliminary issue. The
learned counsel has also referred to the
provisions of Order XIV Rule 2 C.P.C.
and contended that it is no more
mandatory on the trial court to decide an
issue of law as a preliminary issue. Clause
2 of Order XIV of C.P.C. provides that
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 issue.
It is contended that this clause over-ride
the provision of Clause (2) of Rule 2 and
it is not mandatory for the Court to decide
an issue of law as a preliminary issue.
That therefore, the discretion of the Court
should not be interfered with in this
appeal.

The learned counsel for the plaintiff
opposite party no. 1 has referred to
several cases on this point.

10. The first case referred to is a Full
Bench decision of this Court in Sunni
Central Waqf Board v. Gopal Singh
Visharad (FB) reported in AIR 1991
Allahabad page 89. After considering the
provisions of Rule 2 the Full Bench of
this Court held that :

"Now it is discretionary for the Court
to decide the issue of law as a
preliminary
issue
or
to
decide
it
alongwith the other issues. It is no longer
obligation for the Court to decide an issue
of law as a preliminary issue."

11. The other case referred to is a
Division Bench decision in the case of
The Manager , Bettiah Estate Vs. Sri
Bhagwati Saran Singh & others AIR 1993
Allahabad page 2. It was observed that :

"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 apart of the suit.
The discretion in this regard must always
be exercised on the basis of sound judicial
principles. However, 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."

12. The other case referred to is M/s
Ram Babu Singhal vs. M/s Digamber
Prasad Kirti Parshad AIR 1988 Allahabad
299. It was observed in this case that :

"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 mandatory for the Court to decide
the
question
of
jurisdiction
as
a
preliminary issue."

13. The above decisions does not
leave any room for doubt that the Court
has discretion to decide even an issue of
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3 All] Soib Ullah and others V. Bhartesh Chandra Jain and another 809
law with other issues and it is not
obligatory on the Trial Court to decide an
issue of law on which the case may be
disposed
of
as
preliminary
issue.
However, these authorities are absolutely
of no help to the plaintiff respondent no.
1. The reason is that in this case the Trial
Court exercised discretion in favour of the
appellants and decided an issue of law as
preliminary issue. It has also recorded a
finding on that preliminary issue against
the opposite party no. 1. Therefore, there
can be no reason for the first appellate
court to interfere in the discretion of the
trial court. The discretion of the trial court
cannot be given to the first appellate
court. Therefore, the above decisions are
of no help to the respondent no. 1. It is no
doubt true that had the trial court refused
the request to decide the above issue as
preliminary issue it would not have been
proper for me to interfere in its discretion.
Therefore, it was also not proper for the
first appellate court to interfere in the
exercise of the discretion.

14. In this connection I may also
refer to the Full Bench decision of this
Court in the case of Babu Ram Ashok
Kumar & another vs. Antarim Zila
Parishad AIR 1964 Allahabad page 534.
This case has also been referred by the
learned counsel for the respondent no. 1.
It was observed in this case that :

"A court of appeal would not interfere
with the exercise of discretion by the
Court below, if the discretion has been
exercised in good faith, after giving due
weight to relevant matters and without
being swayed by irrelevant matters. If two
views are possible on the question, then
also the Court to appeal would not
interfere, even though it may exercise
discretion differently, were the case to
come initially before it. The exercise of
discretion should manifestly be wrong."

15. A perusal of the judgment of the
appellate court show that there was no
ground for interference by the first
appellate court and there is no finding
recorded that the trial court had not
exercised jurisdiction in good faith and
after giving weight to the relevant
matters. Therefore, the first appellate
court should not have interfered in the
discretion of the trial court to decide the
above issue as a preliminary issue.

16. Another reason for the same is
that the suit is for accounting which
involved recording of lot of evidence and
may take valuable time of the Court. If
after recording of the evidence it is found
that the suit is barred by section 69 of the
Act the entire exercise will be in vain.
Therefore,
the
trial
court
properly
exercised its jurisdiction to decide the
above question as preliminary issue and
the first appellate court has erred in
interfering the same.

17. The finding of the first appellate
court that it is a mixed question of fact
and law is also totally mis-conceived. The
learned counsel for the opposite party no.
1 has referred to this finding, but could
not support the finding and to demonstrate
as to how it is a mixed question of fact.
The question whether the suit for
accounting against the firm and the
partners where the partnership is un-
registered is a pure question of law. It is
admitted
that
the
partnership
is
unregistered.

18. In my opinion, the trial court has
therefore rightly exercised jurisdiction in
deciding
the
above
question
as
a
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810 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
preliminary issue. It has also rightly held
that the suit is barred by section 69 of the
Act.

19. The First Appeal From Order is
accordingly allowed and the order of the
appellate court is quashed and that of the
trial court is restored.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.9.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 414 of 2002

Prem Pal Singh

...Petitioner
Versus
Additional Director of Education and
others

 ...Respondents

Counsel for the Appellant:
Sri V.K. Singh
Sri G.K. Singh
Sri R.N. Singh

Counsel for the Respondents:
Sri M.K. Gupta
Sri B.B. Paul
Sri Nandlal Singh Yadav
Dr. R.G. Padia
S.C.

U.P. Intermediate Education Act- 1921-
Chapter III- Regulation- 55-61 read with
section 16- Transfer of Lecturer from one
aided institution to another - competent
authority granted permission by putting
condition concealment of fact, fraud if
found order can be revoked- in column
18
and
19
purposely
given
false
information that no requisition has been
send
to
the
board-
revocation
of
permission
held-
proper
needs
no
interference.

Held - Para 11

When particular information are solicited
in a prescribed proforma, it is presumed
that
only
correct
and
truthful
information are to be sent. If correct
information's
are
not
sent,
the
consideration of an issue on the basis of
incorrect information is likely to be
vitiated.

Constitution
of
India-
Article
226-
Service law- Natural justice- permission
for transfer of the appellant from one
Institution to another- granted pursuant
to the particulars found false- during
course of enquiry Appellant made protest
by several times- permission revoked-
Principle of natural justice not violated.

Held- para 15

Appellant was, thus, aware of the
enquiry and has also made his protest by
the aforesaid letter. However, in view of
the fact that the power of cancellation of
transfer was exercised by the Additional
Director of Education on the basis of
stipulation reserved in the transfer order
dated 30th June, 2001 that if any fact is
found incorrect the transfer may be
cancelled and further the Additional
Director of Education has not taken into
consideration any other material apart
from information given by petitioner in
the transfer application, we are not
persuaded to accept that there was any
violation of principle of natural justice in
passing
the
cancellation
order.
The
action was being taken on the basis of
information submitted by the appellant
in the transfer application which was
found to be untrue. Before the learned
Single Judge or before us, the appellant
has failed to prove that information
given in the transfer application in
columns no. 18 and 19 were correct
information. The observance of principle
of natural justice vary from fact situation
of each case. Thus, we are of the view
that order dated 24th November, 2001 is
not vitiated on account of the aforesaid
submission.