- (1.) THE suit giving rise to the present revision was filed by the opposite party against the applicant for damages for breach of contract. The suit was instituted at Ghaziabad. The applicant has its registered office at Bombay. The suit was contested by the applicant, inter alia, on the ground that the Court at Ghaziahad had no jurisdiction to entertain the suit and it could be instituted only at Bombay. Third of Sept. 1974, was the date fixed for framing of issues. Issue No. 1 was to the effect whether the Court had jurisdiction to try the suit as alleged by the defendant. After framing issues on that date the Court fixed 12th October, 1974 for deciding issue No. 1 as a preliminary issue. In the meantime on 9th September, 1974, the applicant made an application for framing additional issues. This application was allowed on 14th September, 1974, and on 5th October, 1974 certain additional issues were framed. One of these additional issues being issue No. 7 was whether the plaintiff had accepted the order of the defendant at Modinagar as alleged in paragraph 7 of the plaint and, if so, its effect. On 5th October, 1974, itself an order was passed that issue No. 1 shall be disposed of after the parties had filed their papers. The date of twelfth of October, 1974, which had initially been fixed for determination of issue No. 1 was cancelled. Before the aforesaid issue could, however, be taken up for decision an application was made on 23rd November, 1974, on behalf of the opposite party inviting the attention of the Court to the circumstances that on the pleadings of the parties the issue about jurisdiction could not be decided under Order 14, Rule 2 of the Code of Civil Procedure inasmuch as it did not raise a pure question of law but raised a mixed question of law and fact. This application was opposed by the applicant but was allowed on 5th Feb., 1975, whereby it was held that issue No. 1 cannot be decided as a preliminary issue and shall be disposed of after recording the evidence of the parties. Aggrieved by that order the defendant has preferred the present revision.
(2.) IT was urged by learned counsel for the applicant that the Court below committed a manifest error in taking the view that issue No. 1 could not be decided as a preliminary issue. Having heard learned counsel for the parties I am of opinion that the finding of the Court below is unassailable in a revision under Section 115 of the Civil P. C. On pleadings of the parties there can be no manner of doubt that issue No. 1 does not raise a pure question of law. On the other hand it raises a mixed question of law and fact. In this view of the matter no exception can be taken to the finding of the trial Court that the said issue could not be decided as a preliminary issue under Order 14, Rule 2 of the Civil P. C. Learned counsel for the applicant then placed reliance on Order 15, Rule 3 of the Civil P. C. and on its basis it was urged that even though the issue about jurisdiction raised a mixed question of law and fact it could well have been decided as a preliminary issue under the said provision. I find myself unable to agree with this submission either. In my opinion Order 15, Rule 3, applies only to the disposal of a suit at the first hearing. It cannot be doubted that the date on which issues are framed is the date of first hearing in the suit. Order 15, Rule 3 will apply only if the suit can be decided on the date of issues on the basis of the material already on the record on the said date. My attention was invited to Lachmi Narain v. Rup Narain (AIR 1921 Pat 467) and S. Ramakrishna v. Krishnaswami (AIR 1922 Mad 321) which no doubt support the contention of learned counsel for the applicant that Order 15, Rule 3 may apply to be taken recourse to in order to decide a suit even on a date after the date of issues. A contrary view has been taken by the Calcutta High Court in Debendra v. Jogendra, AIR 1933 Cal 559 which rules that Order 14, Rule 2 refers to the stage of settlement of issues and Order 15, Rule 3 contains provisions similar to those contained in Order 14, Rule 2 for disposal of a suit at the first hearing. Hence these provisions have no application to a case where an application is made after the date fixed for first hearing for the trial of some of the issues, raised in a suit as issues of law without taking evidence. Having gone through the aforesaid cases I am inclined to agree with the view taken by the Division Bench of the Calcutta High Court and my reasons for it are these. Order 15, deals with disposal of a suit at the first hearing as is indicated by its heading. Rule 1 of Order 15 is to the effect that where at the first hearing of a suit it appears that the parties are not at issue on any question of law or fact, the Court may at once pronounce judgment. Rule 1 of Order 14 provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. It refers to the stage of settlement of issues which takes place on the date fixed for the purpose. Since the first hearing of the suit is the date on which issues are framed, Rule 1 of Order 15 necessarily refers to that date. It is in continuation of Rule 1 that Rule 3 of Order 15 occurs. It is to be seen that Order 15, Rule 1 applies where the parties are not at issue, whereas Rule 3 applies where the parties are at issue on some question of law or fact and issues have been framed by the Court. The stage for the applicability of these two rules is the same namely the date of first hearing. Even the phraseology of Rule 3 of Order 15 makes it abundantly clear that this rule is not intended to be applied at a stage subsequent to the date of framing of issues. It would be useful to quote Rule 3 of Order 15 at this stage. It reads: "3. (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether summons has been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects. (2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a date for the production of such further evidence, or for such further argument as the case requires." (Emphasis supplied). Rule 3 of Order 15 therefore, on a plain reading of the said rule, contemplates decision on the date of first hearing if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required. It has further to be satisfied that as a result of proceeding with the suit forthwith no injustice will result. The words 'at once' and 'forthwith' indicate that the said rule contemplates decision on the date of issues of the suit on the basis of the material available on that date and when no further evidence is needed. The clause "whether summons has been issued for the settlement of issues only or for the final disposal of the suit" further supports the view which I am taking. If rule 3 of Order 15 is to be applied even on a date fixed for final hearing, the question whether summons had been issued for the settlement of issues only will lose its significance. It is well known that there are certain types of suits in which no separate date is fixed for issues, for example, suits in the Court of Judge, Small Cause Court, where only one date is fixed when issues are framed and the suit is decided. In other Courts, however, a date is fixed for issues and if the parties are at issue, issues are framed. Normally the documentary evidence which the parties want to produce is also invariably filed on that date and thereafter a date is fixed for final hearing. Since Rule 3 of Order 15 contemplates a decision on the date of issues itself, it became necessary to provide "whether summons has been issued for the settlement of issues only or for the final disposal of the suit". That provision had to be applied equally in both these types of suits. The proviso to sub-rule (1) of Rule 3 of Order 15 makes it clear that in those cases where summons had been issued for the settlement of issues only a decision under Rule 3 can be given only if the parties or their pleaders are present and none of them objects. If the provisions of Rule 3 were to be applied even on the date of final hearing no question of no objection being raised by the parties to the determination of a particular issue could arise because on that date whether the parties agreed or not the case could be decided. For all these reasons I am of opinion that Rule 3 of Order 15 applies only to the disposal of a suit on the date of first hearing namely on the date when issues are framed.
(3.) IN the instant case it would be seen that the issue in regard to jurisdiction, namely issue No. 1, was framed on 3rd September, 1974, which was the date fixed for issues. On that date admittedly no document was filed by the applicant. The entire emphasis of learned counsel for the applicant was that on the basis of the documentary evidence on record the issue about jurisdiction could be decided. When documents were not at all filed on 3rd September, 1974, by the applicant on the basis of which it is alleged that the issue about jurisdiction could be decided, it can hardly be urged that Order 15, rule 3 was attracted. The documents were filed by the parties subsequently. It appears that the documents filed by one party are not admitted by the other party. They have not been proved so far. Even at this stage, therefore, no finding can be given in regard to the issue of jurisdiction on the basis of the documents alone. Once these documents are not admitted they will have to be formally proved before any reliance can be placed on them. For this purpose oral evidence would invariably be necessary. The issue about jurisdiction could not, therefore, be decided as a preliminary issue under Order 15, R.3 either.;