Decided on December 11,1963



- (1.) This is an application under Art. 227 of the Constitution questioning the legality of the order passed by the Asst. Settlement Officer, Vizianagaram given on 8-3-1962. The necessary facts are that the respondent, filed an application under Sec. 56 of the Madras Estates (Abolition and Conversion into Ryotwari) Act seeking a declaration as to who is the lawful ryot. In those proceedings the petitioner raised an objection that in an earlier proceeding under Ss. 11 and 15 of the Madras Estates Abolition Act, it was found by the Settlement Officer and the Appellate authority that the respondent is a sub-tenant and that the petitioner is a tenant, granting ryotwari patta to the petitioner . That judgment being final and conclusive between the parties, it is not open to the respondent to reagitate that question in a proceeding initiated under Sec. 56 of the Abolition Act. She separately filed an application and requested the Asst. Settlement Officer to treat this question as a preliminary question of law and decide it. The Asst. Settlement Officer rejected the petition as it was opposed by the respondent holding that this matter also can be decided finally with other issues. The only question which requires to be considered in this revision is whether the Asst. Settlement Officer was justified in postponing the consideration of the objection raised by the petitioner. Under O. 14, r. 2 C. P. C. 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. While it is true that in a Civil suit which can come up before this Court on appeal, it is found always desirable for the trial Court to dispose of all the issues, it does not necessarily mean that an issue which goes to the root of the trial cannot be considered at the appropriate stage. If that interpretation is accepted the provisions of Or. 14, R. 2 will become nugatory. It is true that it is left to the discretion of the tribunal before whom proceedings are pending to determine whether the question of law is of that nature or not. But undoubtedly that discretion has to be exercised in a judicial manner. Without assigning any reason, it cannot be stated by any tribunal that any issue which falls within the purview of O. 14, R. 2 C. P. C. will be heard only at the end of the trial. For example, S. 3 of the Indian Limitation Act obliges the Court to consider at the initial stage, whether the suit is time barred or not. Similarly a question of jurisdiction raised ought to be disposed of as a preliminary issue. On the same analogy any objection taken under Sec. 11 C. P. C. , i. e., objection as to res judicata, that objection has to be disposed of at the earlier stage of the suit. The opening words of Sec. 11 C. P. C. clearly stated that no Court shall try any suit or issue in which the matter was directly and substantially in issue in a former suit and was finally disposed of by a competent Court. The very purpose of this section will be defeated if it is uniformily insisted that such issues also should be tried at the end of the trial along with the other issues of fact. That wholesome principle referred to above is applicable where the preliminary issues do not reach the roots of the case.
(2.) The learned counsel appearing for the respondent was doubtful whether the provisions of Civil Procedure Code are applicable to the proceedings instituted before the Settlement Officer. Assuming that the provisions of Civil Procedure Code are not applicable, nevertheless the analogy underlying the above said provisions of C. P. C. would apply to such proceedings. Therefore I find no difficulty in reaching the same conclusion even if the provisions of Civil Procedure Code are not directly made applicable. I do not, however, decide in this case, as it is unnecessary, whether the provisions of Civil Procedure Code are applicable to the proceedings under S. 56 of the Abolition Act.
(3.) I am therefore satisfied that the objection raised by the petitioner in this case was such that it ought to have been treated as a preliminary issue of law falling within the provisions of Or. 14, R. 2 C. P. C. and should have been heard and disposed of before entering into an enquiry in regard to other issues. In this respect one cannot ignore that the parties in the earlier proceedings did set up the self-same pleas. Those proceedings had reached this Court and were finally determined. It must therefore be seen what is the effect of the decision given in a proceeding falling under Ss. 11 and 15 of the Abolition Act. I should not be taken to have said anything on the merits of the objection raised. What I would like to emphasise is that this is a question which falls clearly within Or. 14, R. 2 C. P. C. and should have been tried as such. The tribunal in my opinion has failed to exercise its jurisdiction on well recognised principles. This Court is, therefore, entitled to interfere. I would therefore allow this revision petition, set aside the order of the tribunal and direct that the objection raised by the petitioner should be tried as a preliminary issue and disposed of on merits. In view of the circumstances of the case, I do not make any order as to costs. The stay is vacated.;

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