Read Order:  SATHYANATH AND ANOTHER Vs. SAROJAMANI 

Mansimran Kaur

New Delhi, May 07, 2022: The Supreme Court has opined that the objective of the provisions of Order XLI Rules 24 and 25 CPC is that if evidence is recorded by the Trial Court on all the issues, it would facilitate the first Appellate Court to decide the questions of fact even by reformulating the issues. 

The Division Bench of Justice Hemant Gupta and Justice V. Ramasubramanian noted that it is only when the first Appellate Court finds that there is no evidence led by the parties, the first Appellate Court can call upon the parties to lead evidence on such additional issues, either before the Appellate Court or before the Trial Court.

A Division Bench was considering an appeal filed against an order whereby in the revision petition filed by the defendant under Article 227 of the Constitution of India, the Trial Court was directed to frame a preliminary issue as to whether the suit was barred by res judicata, observed that it is not a disputed fact  that res judicata is a mixed question of law and fact depending upon the pleadings of the parties and it  is not a plea in law alone or a statutory bar under clause (b) of sub- Rule (2), and thus the same couldnot be framed as a preliminary issue. 

The present appeal was preferred against an order dated September 3, 2021 whereby in the revision petition filed by the defendant under Article 227 of the Constitution of India, the Trial Court was directed to frame a preliminary issue as to whether the suit was barred by res judicata. 

Facts in brief for adjudication of the present appeal were that the plaintiffs instituted an original suit against the respondent, their paternal aunt. The appellants claimed a declaration for the purpose of declaring themselves as absolute owners of the suit property and for declaring the judgment and decree that emerged out of the original suit of 2003 as null and void. They further sought for a permanent injunction in order to restrain the defendant and her agents from causing any disruption in the  peaceful possession of the suit property by the appellants. 

The defendant even filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint but the same was dismissed by the Trial Court on June 20, 2017. 

 It is thereafter that the defendant filed an application to frame issues under Order XIV Rule 2(2) of the Code. However, the Trial Court dismissed the application of the defendant on October 3, 2019. The same was assailed by way of revision petition under Article 227 of the Indian Constitution, wherein the High Court framed the issue of res judicata as the preliminary issue.  The same was assailed by the appellants in the form of appeal before the present Court. 

The Counsel for the appellants relied upon the  provisions of Order XIV Rule 2 of the Code to contend such Order XIV Rule 2 has been substituted by Central Act No. 104 of 1976, whereby the Court is mandated to pronounce judgment on all issues, even though the suit can be disposed of on a preliminary issue. It was further contended that the objective of the aforesaid amendment was to avoid deferment in the disposal of the proceedings. Secondly, the counsel contended that in order to ensure expeditious disposal of the proceedings and to avoid the possibility of remand by the appellate or provisional jurisdiction, it was made mandatory for the Court to record reasons on all the issues.


The Counsel for the respondent on the contrary contended that on a question of res judicata, the preliminary issue needs to be framed.

 The Court after hearing the submissions of the parties, opined that the order of the High Court issuing direction to the Trial Court to frame preliminary issue on the issue of res judicata was not appreciable and the same suffocates the expeditious disposal of lis between the  parties. It was further observed that the sole objective of Order XIV Rule 2 was to stipulate   the Courts to pronounce judgments on all  issues subject to the provisions of sub- Rule (2).  However, in cases where in the issues of both law and fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that suit first, if it relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. 

It is only in those circumstances that the findings on other issues can be deferred, the Court remarked. It was further stated that there is iota of doubt on the proposition that res judicata is a mixed question of law and fact depending upon the pleadings of the parties. It is not a plea in law alone or a statutory bar under clause (b) of sub- Rule (2).

The Bench referred to its judgment in Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. wherein it was observed that Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.

 In addition to the aforesaid submissions, the Court observed that the objective of the provisions of Order XLI Rules 24 and 25 is that after the Trial Court had appreciated the evidence on record pertaining to all the issues raised, then only the same would facilitate the First Appellate Court to decide the questions of fact even if restructuring of  issues is required.   Thereafter, when the Appellate Court is of the conclusion that no evidence is led by the parties, it is then that the Appellate Court can call upon the parties to produce evidence on additional issues. In totality, all the amendments and provisions seek to fulfill the objective of early finality of lis between the parties. 

The Bench said, “ Keeping in view the object of substitution of sub-Rule (2) to avoid the possibility of remanding back the matter after the decision on the preliminary issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all the issues.”

Consequently, it was opined that the order of the High Court sending the matter back to the file of the Trial Court to frame the preliminary issue completely vitiated the objective that was introduced by the Order XIV Rule 2. Therefore, the Court observed that the Trial Court should have recorded findings on all the issues in order to negate the probability of remand that arises if the suit is only decided on the preliminary issue. 

Accordingly, the appeal was allowed and an order passed by the High Court was set aside.  

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