SAO No. 36 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- SAO No. 36 of 2007 Date of decision: November 11, 2009 Sat Narain ........ Appellant Versus Punjab Wakf Board .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Pankaj Katia, Advocate for the appellant Mr. Arun Palli, Senior Advocate with Mr. Jai Bhagwan, Advocate for respondent No. 1 and 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is an appeal against the judgement dated 26.09.2007 passed by the Appellate Court vide which the judgement and decree dated 31.01.1989 passed by the trial Court has been set aside and the suit of the plaintiff-respondents is remanded back to the trial court with a direction to frame all the issues in the case and then to record evidence after giving opportunity to the parties and thereafter to dispose of the suit by giving SAO No. 36 of 2007 2 findings on all the issues. The relevant facts of the case, in short, are that the plaintiff- respondent instituted a suit for declaration that the decree dated 02.03.1973 passed in civil suit No. 11 of 19.02.1973 is illegal and by collusion, conspiracy and fraud and, as such, was not binding on the rights of the plaintiff. In that suit, an application was moved by the present appellant- defendants No. 6 and 7, for framing two preliminary issues. Counsel for the plaintiff and counsel for the remaining defendants in the suit did not raise any objection to the framing of the preliminary issues. Accordingly, following preliminary issues were framed on 24.12.1988 :- 1. whether the plaintiff has no locus standi to file the present suit as alleged in para No. 1 of the legal objections of the written statement of defendants No. 6 and 7?OPD 6 and 7 2. Whether the suit is competent and filed through an authorised person? OPD. Evidence was duly led. The arguments were advanced by the counsel for the parties. After taking into account the evidence and the arguments, issue No. 1 was decided against the defendants and the present appellant-defendant No. 6 and 7, namely, Sat Narain and Kamla Devi, did not press for the said issue. On issue No. 1 following findings were recorded:- “14. In view of the authority referred to above, learned counsel for defendants no. 6 and 7 has not pressed this issue. Hence, this issue is decided against the defendants.” SAO No. 36 of 2007 3 With regard to issue No.2 also, which was decided against the respondent-Board, it was held that:- “In view of the above cited authority it has been contended that no separate resolution of taking decision to file the suit has been passed and as such, the suit is not competent. Learned counsel for the plaintiff has conceded at the bar that no such separate resolution was ever passed by the Wakf Board. He has, however, contended that resolution No. 8 referred to above, is in itself sufficient to authorise the Acting Secretary of the Board to institute the present suit.” Thereafter, the issue was decided against the respondent-Board by holding that in the absence of any separate resolution, authorising the Acting Secretary of the Board to institute a suit, the same was incompetent and filed without any authority. Aggrieved by the same, the plaintiff-respondent filed an appeal before the Additional District Judge, Bathinda, who accepted the appeal vide judgement dated 26.09.2007, and remanded the suit back to the trial court with a direction to frame all the issues in this case and then to record evidence by giving due opportunity to the parties and thereafter to dispose of the suit by giving findings on all the issues. The aforesaid order was passed by holding:- “14. This Court has reached the conclusion by considering the authorities cited before this Court that the issues framed and treated as preliminary by the trial Court SAO No. 36 of 2007 4 required evidence for their adjudication. Only an issue which requires no evidence and can be disposed off purely on legal matters can be treated as preliminary issue and issue requiring evidence for its disposal cannot be treated as a preliminary issue in the opinion of this Court. The trial Court has, thus, erred in treating the above referred issues as preliminary issues and has disposed off the suit without recording findings on the other controversy between the parties. The issues on which the suit of the plaintiff has been disposed off cannot be treated as preliminary issue and the judgement and decree passed by the Court below cannot be sustained in this appeal.” While challenging the impugned judgement dated 26.09.2007 passed by the Appellate Court, learned counsel for the appellant submitted:- a) that the Appellate Court has erred in arriving at the conclusion that the preliminary objection required evidence, without considering that it was admitted by the counsel for the plaintiff before the lower Court that no separate resolution had been passed. b) the Appellate Court has failed to take into consideration the fact that the issue in question goes to the root of the case. This being the main issue as to whether the suit is competent and filed through an authorised person cannot be just by passed. It is also submitted that as per the proviso 2 of the Order 14 Rule 2 of the Code of Civil Procedure, the Court may try the issue, if it is an issue of law only and may first decide the issue on the point of SAO No. 36 of 2007 5 laws for the time being in force and for that purpose may, if it think fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue. c) that the Appellate Court has erred in law while observing that a question can be dealt with as preliminary issue only when there is a question of law. The fact that there is no second resolution is admitted. Thus, there being no dispute on facts and the law being already settled by the ratio in the case of Punjab Wakf Board v. Darb Singh, reported as 1988 (1) PLR 525 which categorically states that a separate resolution has to be taken with regard to filing of an appeal and the same cannot be dispensed with by some other resolution imposing a person/officer with the powers to engage lawyer, purchasing court fee and judicial papers, signing the Vakalatnama etc., the said question was a preliminary objection. Learned counsel for the respondents on the other hand relied on the judgement rendered by the Hon'ble Apex Court in the case of 'Swami Krishnanand Govindanand v. M D Oswal Hosiery (Regd.)'-(2002)3 Supreme Court Cases 39, to substantiate that the admission of counsel contrary to stand of party is not binding. Reliance has also been placed on the judgement of the Hon'ble Supreme Court rendered in the case of 'United Bank of India v. Naresh Kumar and others', AIR 1997 Supreme Court 3, to say that the suit cannot be dismissed on the ground that the plaint has not been signed and verified by the competent person. It was further submitted that as per the judgement rendered by Orissa High Court in the case of 'Ganta Swain and others v. Kandhuni Gounduni and others, 1996 (2) Civil Court Cases 70, SAO No. 36 of 2007 6 the trial court should dispose of all the issues together. Learned counsel for the parties have been heard. After going through the pleadings as well as hearing the learned counsel for the parties, the following facts have emerged:- 1) That defendants No. 6 and 7, namely, Sat Narain and Kamla Devi before the trial Court moved an application for framing two preliminary issue; 2) One of the issues was whether the suit is filed through competent person; 3) The plaintiff, i.e., Wakf Board and counsel for the defendants did not object to the framing of the aforesaid preliminary issue; 4) It was admitted that there was no separate resolution authorising the Secretary of the Board to institute a suit. Thus, there was no dispute on facts. 5) Even then, the plaintiff, Wakf Board was allowed to lead their evidence on the preliminary issues. 6) The question whether second resolution is necessary or not was therefore a preliminary objection and was decided in view of the law laid down in the case of Wakf Board (supra). Order 14 Rule 2 of the Code of Civil Procedure reads as under:- “(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub rule (2) pronounce judgement on SAO No. 36 of 2007 7 all issues. (2) Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try issue first if that issue relates to- a) the jurisdiction of the Court; or b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” Proviso 2 of the Order 14, Rule 2 C.P.C. makes it clear that in case there is a bar to the suit created by any law for the time in force, the other issues can be postponed and the issue dealing with the preliminary issue, which goes to the root of the case can be determined at the first instance. The Appellate Court held that only an issue which requires no evidence and can be disposed of purely on legal maters can be treated as preliminary issue. The aforesaid conclusion may not be correct in the facts of the present case in view of the fact that evidence with respect to the preliminary objection was already recorded. Even otherwise, it being a conceded case of the respondents that no separate resolution had been passed by the Board to institute a suit, no other evidence was required for concluding this fact. Thus, the only legal issue that was required to be answered was as SAO No. 36 of 2007 8 to whether a separate resolution authorising a person to decide whether to file a suit is necessary or not and whether the resolution authorising the competent authority to engage a lawyer is in itself sufficient or not. It is a purely legal issue. Therefore, the trial Court rightly decided the same as preliminary objection. On appeal, the Appellate Court without touching the merits as to whether a separate resolution is required or not, remanded the case back to the trial Court by holding that such question was a mixed question of law and fact and therefore requiring recording of evidence, cannot be termed as preliminary objection. As discussed above, the fact that there was no second resolution was admitted by the learned counsel for the parties. No evidence was required for the same. The second part of the question as to whether a separate resolution granting authority to file a suit was necessary or not, does not require any evidence. The same is a pure question of law. In any case, even if some evidence is required, the same cannot be an impediment in the way of a preliminary issue. In the case of Jagdev Singh v. Sardarni Prem Parkash Kaur, 2002 (2) RCR (Civil) 783, in para 18 of the said judgement, it was held that :- “18. If it is presumed for the sake of argument that the review was competent and the order dated 5.5.1995 should have been scrutinised in the light of the various judgements providing that the issues which are issues of mixed questions of law and facts could be treated as preliminary issues. I am of the considered opinion that there is nothing SAO No. 36 of 2007 9 on record which may indicate that the issues, with regard to limitation, maintainability, Court fee and res judicata are not the issues of law. A Constitution Bench of the Supreme Court in the case of Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others, AIR 1966 SC 153 , has held that the issue concerning res judicata is an issue of law and, therefore, there is no impediment in treating and deciding such an issue as a preliminary issue. Relying on the aforementioned judgement of the Constitution Bench, this Court has taken the view in the case of Meharban v. Punjab Wakf Board (Supra) and Harinder Kumar (supra) that such like issues can be treated and decided as issues of law under Order 14, Rule 2(2) of the Code. Similarly, the other issues concerning limitation, maintainability and court fee could always be treated as preliminary issues as no detail evidence is required to be led. Evidence of a formal nature even with regard to preliminary issue has to be led because these issues would either create a bar in accordance with law in force or they are jurisdictional issues. Therefore, even on merits, I have no hesitation in holding that the order dated 05.05.1995 does not suffer from any legal infirmity.” It is apparent that earlier also the evidence was of a formal nature. In fact, the learned counsel for the plaintiff had admitted that there was no separate resolution. The question was whether the separate resolution was SAO No. 36 of 2007 10 necessary or not. For which, no evidence was required. The said issue of maintainability goes to the root of the case and was rightly decided as a preliminary issue. In fact, learned Single Judge in the case of 'Babu Ram and another v. Pakiza Begam and others', 848-The Punjab Law Reporter (Vol 1 XXIV-1972) went so far so as to hold that there was nothing in the rule, which debars a party from leading evidence on the said issue because the same has to be tried as a preliminary one. That being so, it cannot be said that an issue, which cannot be decided without leading evidence, can never be called a preliminary one and held as under:- “4. Under this provision, the Court is empowered to try certain issues as preliminary ones. There is nothing in this rule, which debars a party from leading evidence on the said issue, because the same has to be tried as a preliminary one. That being so, it cannot be said that an issue, which cannot be decided without leading evidence, can never be called a preliminary one. Besides, both the above mentioned issues were held to be preliminary and were ordered to be tried as such by the predecessor of the learned Judge and no valid ground has been given by him for changing the previous order. The mere fact that some evidence has to be led for the determination of those issues is, in my opinion, no reason in law to direct that they may not be tried as preliminary ones. As a matter of fact, the decision on the two issues might obviate the necessity of a lengthy trial on all the other issues struck in the case.” The judgements cited by the learned counsel for the respondents in the cases of 'Swami Krishnanand Govindanand, United Bank of India and Ganta Swain (Supra) are relevant only for the purposes of deciding the preliminary issue on merits and hence will not be applicable for the purposes SAO No. 36 of 2007 11 of the present appeal and is not relevant in the facts of the present case where the question is whether the said issue is preliminary or not. . In view the foregoing discussion, the appeal is allowed and the order dated 26.09.2007 passed by the Appellate Court is hereby set aside. The Appellate Court is directed to decide the appeal on merits of the preliminary objection concerning the maintainability of the suit itself. However, nothing said herein above will have any bearing on the merits of the appeal. (Nirmaljit Kaur) Judge November 11, 2009 mohan