Muraleekrishnan v. David George and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-11-21
Court Decision / Holding: This Original Petition is without merits and it is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Muraleekrishnan

Respondents

David George
Latha Nair
Anitha

Legal Representation & Advocates

Counsels for Petitioners

• Sri K.S. Hariharaputhran
• Sri George Mathew

Counsels for Respondents

• Sri Syam J Sam

Case Synopsis & Summary

This Original Petition challenges Ext.P7 order by the Sub Court, Kottarakkara, which postponed a decision on the maintainability of the suit under Order 2 Rule 2 CPC. The petitioner, Muraleekrishnan, was contesting a suit for specific performance instituted by the first respondent, David George, against him, on an agreement dated 17-08-2011 for sale of property at Rs 2,75,000 per cent, with subsequent payments and a six-month extension to 18-08-2012. The first respondent had earlier filed O.S. 342/2012 for injunction; that suit was dismissed as not pressed, a memo of not pressing. The current suit relies on the prior suit and the plea that the claim is barred by Order 2 Rule 2 CPC. The defendant (petitioner) contends that the court erred in deferring the issue, arguing that the documents alone would establish bar. The respondents argue that post-1976 amendment, the court may decide whether to try such an issue as a preliminary matter or defer it to trial, citing judicial discretion and the principle that the issue may involve mixed questions of law and fact. The High Court discusses the discretionary power under Order XIV Rule 2 CPC, references Mary v. Mathew Joseph for the proposition, and ultimately holds that the lower court’s approach did not cause prejudice or error, and the Original Petition is without merits and is dismissed.

Provisions of Law Cited

Order 2 Rule 2 CPCOrder XIV Rule 2 CPCSection 11 CPC

Legal Doctrines & Maxims

Res judicata
Estoppel by judgment
Estoppel is a rule of evidence

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the court below was wrong in deferring the decision on the maintainability under Order 2 Rule 2 CPC. The plaint itself refers to the earlier suit and the not-pressed memo, which should render the suit liable to be disposed of as a preliminary issue. The discretion to decide whether to hear such issues at preliminary stage or defer them must be exercised judicially, and not in a manner that prejudices the party. The 1976 amendment to Order XIV Rule 2 CPC permits such judicial discretion; if evidence is to be recorded, the issue may not be disposed of as a pure preliminary issue. The documents and the prior suit should have sufficed to resolve the issue at threshold; thus the deferment, without clear justification, was improper. The argument further relies on Mary v. Mathew Joseph to underline the nature of discretionary power and the need for a reasoned approach.

Contentions of Respondents

The respondents submit that after the 1976 amendment, courts have discretion to decide whether an issue should be tried as a preliminary issue or deferred until after trial, especially where the issue involves mixed questions of fact and law. They argue that no prejudice is caused to the petitioner by deferring the decision, given the need to examine multiple documents and to allow the petitioner to explain circumstances related to the not-press memo in the earlier suit. The issue is essentially a mixed question of fact and law and cannot be treated purely as a preliminary issue. The court’s discretion to defer is justified under Order XIV Rule 2 CPC, and the High Court should not interfere absent a showing of perverse reasoning or injustice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mary v. Mathew Joseph	1992(1) K.L.T. 227	Positive	Cited to support the proposition that the court has discretion to decide whether an issue should be tried as a preliminary issue or deferred, after the 1976 amendment; the decision is used to justify the lower court’s discretionary approach.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936** ## **OP(C).No. 2183 of 2014 (O)** ## **--------------------------(I.A.NO.1355/2014 IN O.S.NO.313/2012 OF SUB COURT, KOTTARAKARA)** **--------------------** ## **PETITIONER:** **----------------------** ## **MURALEEKRISHNAN, AGED 57 YEARS, S/O. LATE RAGHAVAN NAIR, PARVATHY MANDIRAM, CHEMMANTHOOR THEKKEKARA, PUNALUR.** ## **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW** **RESPONDENTS:** **-----------------------------** **1. DAVID GEORGE,S/O. GEORGEKUTTY, HILL PALACE, KUTHIRACHIRA, PUNALUR, PIN-691 305.** ## **2. LATHA NAIR,** **D/O. PONNAMMA, PARVATHY MANDIRAM, CHEMMANTHOOR THEKKEKARA, PUNALUR, PIN-691 305.** ## **3. ANITHA,W/O. MURALEEKRISHNAN,** **PARAVATHY MANDIRAM, CHEMMANTHOOR THEKKEKARA, PUNALUR, PIN-691 305.** **R1 BY SRI.T.KRISHNAN UNNI,SENIOR ADVOCATE ADV. SRI.AJAYA KUMAR. G R2 BY ADV. SRI.SYAM J SAM** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(C).No. 2183 of 2014 (O)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1TRUE COPY OF PLAINT IN O.S.NO. 313/2012 OF SUB COURT, KOTTARAKARA DATED 4-12-2012.** - **EXHIBIT P2TRUE COPY OF AGREEMENT DATED 17-8-2011.** - **EXHIBIT P3TRUE COPY OF PLAINT IN O.S. 342/2012 DATED 7-9-2012 BEFORE THE MUNSIFF'S COURT, PUNALUR.** - **EXHIBIT P4TRUE COPY OF JUDGMENT DATED 15-12-2012 IN O.S.NO. 342/2012 OF MUNSIFF'S COURT, PUNALUR.** - **EXHIBIT P5TRUE COPY OF WRITTEN STATEMENT OF 1ST DEFENDANT DATED 10-4-2013.** - **EXHIBIT P6TRUE COPY OF PETITION IN I.A.NO. 1355/2014 IN O.S.NO. 313/12 BEFORE THE SUB COURT, KOTTARAKKARA.** - **EXHIBIT P7TRUE COPY OF ORDER IN I.A.NO. 1355/2014 IN O.S.NO. 313/2012 DATED 20-8-2014 OF SUB COURT, KOTTARAKARA.** ## **RESPONDENT(S)' EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - O.P.(C). No. 2183 of 2014 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of November, 2014. ## **JUDGMENT** Under challenge is Ext.P7 order whereby the court below postponed the decision on issue regarding the maintainability of the suit challenged on the basis of Order 2 Rule 2 of the Code of Civil Procedure. 2. The facts absolutely necessary for the disposal of this petition are as follows: The first respondent herein instituted a suit for specific performance of a contract. It is the admitted fact that there was an agreement between the parties dated 17.8.2011. Consideration covered by the agreement was Rs.2,75,000/per cent. It is submitted that subsequent to the date of agreement, certain amounts were paid. On 18.2.2012 the period for execution of the sale deed was extended by six months, i.e. till 18.8.2012. O.P.(C)2183/2014. 2 3. The first respondent had laid an earlier suit as O.S. 342 of 2012 on 7.9.2012 and later he filed a memo stating that the suit is not pressed and therefore the suit was dismissed as not pressed. That was a suit for injunction restraining the defendants from alienating the property to none else than the plaintiff. 4. Thereafter he instituted the present suit for specific performance. In the written statement filed by the first defendant, who is the petitioner before this Court, it was contended that the claim is barred by Order 2 Rule 2 of C.P.C. and then moved the court below for trying that as a preliminary issue. The court below framed an issue and then on hearing both sides found that it is a mixed question of fact and law and therefore deferred the decision on the issue regarding maintainability of Order 2 Rule 2 of the Code till the final stage, i.e. after trial. O.P.(C)2183/2014. 3 5. It is the said order that is assailed before this Court. 6. Learned counsel appearing for the petitioner pointed out that the court below was not justified in deferring the question as the documents produced would sufficiently show that the claim is bared by Order 2 Rule 2 of the Code. The plaint itself mentioned about the earlier suit and that would have been sufficient for the court below to dispose of the suit on the preliminary issue. Learned counsel went on to point out that assuming that there is a discretion on the part of the court below to defer the issue till the trial is over, that discretion has to be exercised in a judicial manner and on the facts and circumstances of the case which is not reflected in the present order. Therefore, the present order is liable to be set aside. 7. Sri. T. Krishnanunni, learned Senior Counsel appearing for the respondents on the other hand pointed out O.P.(C)2183/2014. 4 that after the 1976 amendment, the court has a discretion to decide whether an issue should be taken as a preliminary issue or should be deferred after trial. Learned Senior Counsel relied on the decision reported in Mary v. Mathew Joseph (1992(1) K.L.T. 227) for the above proposition. It is also pointed out that no prejudice is caused to the petitioner herein by deferring the issue especially when several documents will have to be marked and also that the petitioner will have to get an opportunity to explain the situation under which the not press memo had been moved. It is also contended that the issue is a mixed question of fact and law and it could not be tried as a preliminary issue. 8. Going by the decision referred to by the learned Senior Counsel, this Court had occasion to consider the question of Order XIV Rule 2 of the Code after amendment and in that decision it was held as follows: “Even where issues of the said nature arise, what is stated in sub-rule (2) is, the court may try that issue O.P.(C)2183/2014. 5 first. What is significant to be noted is, the Court has got discretion to decide whether even the said type of issue should be tried as preliminary issues. The conditions, therefore, to be satisfied are, the court must be of the opinion that such preliminary issue can be disposed of on law and the issue relate to jurisdiction of the court or a bar to the suit created by law. Once it is seen that evidence is to be recorded, the issue will not fall under sub-rule (2). Only an issue raising a pure question of law, falling either under clause (a) or (b) of sub-rule 2 of Order XIV where evidence is not necessarily to be recorded can be tried as a preliminary issue. A judgment can operate as res judicata if the conditions enjoined under S. 11 CPC are satisfied, it should be proved that the issue in the suit was directly or substantially in issue in an earlier suit between the same parties, or between parties under whom they claim, and that they were litigating under the same title. A compromise decree creates an estoppel by judgment. Estoppel is a rule of evidence. In either case, the matter involves proof. Further res judicata prevents only trial; it does not prevent institution or entertaining of the suit. Therefore res judicata or estoppel cannot be said to be a bar to the suit created by law within the meaning of clause (b) of sub-rule (2) or Order XTV Rule 2 C.P.C. Even if the court O.P.(C)2183/2014. 6 is of the opinion that the case or any part thereof can be disposed of on an issue of law only, it is not obligatory for the court to try the same,as a preliminary issue. The court is not bound to try an issue as preliminary issue even as per sub-rule (2) of Rule 2 since it not obligatory. Sub-rule (2) of Order XIV Rule 2 C.P.C. is indicative of the fact that, the court has got discretion in the matter. The discretion exercised by the trial court in this regard cannot normally be interfered with by the High Court unless it is shown that the same is likely to result.in injustice.” 9. In the case on hand, the claim of the first defendant is that by virtue of the dismissal of the earlier suit, O.S. 342 of 2012, as not pressed, the claim in the present suit is barred under Order 2 Rule 2 of the Code. This is essentially a question of fact. Plaint in the earlier suit, not press memo, the judgment etc., will have to be produced so as to reach some conclusion. The lower court therefore felt that the issue could not be decided independently. The court below could not be found fault with. As rightly pointed out, no prejudice is 7 O.P.(C)2183/2014. caused to the petitioner by having the issue deferred for decision after trial. 10. At any rate, it is felt that this is not a case where the supervisory jurisdiction of this Court needs to be exercised in favour of the petitioner especially when it is not shown that the finding of the court below is either perverse or contrary to law. This Original Petition is without merits and it is dismissed. P. BHAVADASAN, JUDGE sb.