Supreme Court of India
Santosh Kumar vs Ashok Chand on 2 February, 2021Author: N.V. Ramana
Bench: N.V. Ramana, Surya Kant, Aniruddha Bose
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5124 OF 2013
Santosh Kumar @ Rana Ram Kalal …..Appellant
Ashok Chand and Others …. Respondents
N. V. Ramana, J.
1. The instant appeal, by way of special leave, is directed
against order dated 15.03.2010 passed by the High Court of
Judicature for Rajasthan at Jodhpur in Civil Writ Petition No.
6517 of 2009 whereby the High Court allowed the writ petition
filed by the respondent nos. 1 and 2 herein, and directed the Trial
Court to decide certain issues as preliminary legal issues.
Signature Not Verified
Digitally signed by
2. A conspectus of the facts necessary for the disposal of the
appeal are as follows: the appellant herein filed a civil suit against
the respondents in the year 2007 seeking, inter alia, possession of
the disputed property and a declaration that he is the owner of the
disputed property. The Trial Court, vide order dated 22.04.2008,
framed as many as eleven issues, of which we are concerned
currently with the four issues extracted below:
“iii. Whether as narrated in para 9 and 12 of the
plaint, the plaintiff is entitled to take legal
possession and to receive rent of the concerned
shops from the defendant Nos. 3 to 5?
vi. Whether as narrated in the Majid Ujrat in the
written statements, Smt. Kanta Devi and Nikita
on becoming Sadhvis after taking Jain Diksha on
17.2.2000 have suffered civil death, thus no sale
deed was executed nor could have been executed
by them or by their alleged power of attorney
holder, thus the suit of the plaintiff is not legally
maintainable as being based on unnecessary and
non existent documents?
viii. Whether as narrated in para 9 of the written
statement, this court does not have jurisdiction
to hear this suit?
ix. Whether this suit is liable to be dismissed as
being barred by law and being without any cause
3. Thereafter, the respondents filed an application under Order
XIV Rule 2, Code of Civil Procedure before the Trial Court seeking
that the above issues be decided as preliminary questions of law.
On 19.05.2009, the Trial Court rejected the application of the
respondents on the ground that the issues raise mixed questions
of fact and law, and therefore require the parties to lead evidence
before the same can be decided.
4. Aggrieved by the order of the Trial Court, the respondent nos.
1 and 2 filed a writ petition before the High Court challenging the
same. Vide the impugned order dated 15.03.2010, the High Court
allowed the writ petition, thereby setting aside the order dated
19.05.2009 passed by the Trial Court, and directed the Trial Court
to decide the above issues as preliminary questions of law.
5. Aggrieved by this order of the High Court, the appellant has
filed the present civil appeal, by way of special leave.
6. The learned counsel for the appellant submits that the High
Court erred in directing the Trial Court to decide the issues in
question as preliminary issues of law when they related to mixed
questions of law and fact. Further, the learned counsel for the
appellant also submits that the High Court, in its impugned order,
has passed certain observations on the legal issues involved which
would adversely affect his suit.
7. On the other hand, the learned counsel for the respondents
submits that the impugned judgment of the High Court does not
merit any interference by this Court in its jurisdiction under
Article 136 of the Constitution. They submit that no prejudice is
caused to the appellant by the impugned order. The counsel
further submits that although there is no stay of trial, it has still
not concluded despite the fact that the suit was filed as far back as
8. Heard counsel for the parties at length.
9. While the counsel for the appellant strenuously submitted
that the issues involved mixed questions of fact and law, he was
unable to produce any material to substantiate the same. On the
other hand, it appears that the appellant’s claim is based on
documents executed by a power of attorney holder, as per his own
plaint. Further, he has also admitted that the original owners had
taken “Jain Diksha” and become “Sadhvis”. In such a
circumstance, the approach of the High Court in directing the
above framed issues to be decided as preliminary questions of law
cannot be said to be incorrect. The learned counsel for the
respondents has rightly pointed out that all the above framed
issues relate to maintainability of the suit. Further, on being
questioned by the Bench, the learned counsel for the appellant
could not point to any prejudice that would be caused if the issues
are taken up and decided by the Trial Court as preliminary
questions of law.
10. Having said that, we are inclined to agree with the
submission of the counsel for the appellant that some of the
observations of the High Court in the impugned order may
adversely affect his case before the Trial Court. Certain stray
observations of the High Court, particularly in paragraphs 5 and 7
of the impugned order, appear to prejudge the issues at hand.
11. We are therefore not inclined to interfere with the impugned
order dated 15.03.2010 passed by the High Court, except to the
extent of directing the Trial Court to decide the issues at hand,
and the suit, without being influenced by any observations made
by the High Court.
12. Keeping in mind the submission of the counsel for the parties
that the present trial has been pending for a long duration, we
direct the Trial Court to decide the matter expeditiously on its own
merits and in accordance with law.
13. The Civil Appeal is, accordingly, disposed of with the above
directions. Stay on operation of the impugned order, directed vide
this Court’s orders dated 07.05.2010/12.05.2010 and 01.07.2013,
FEBRUARY 02, 2021.