The Delhi High Court clarified that only an issue which is of a legal nature and affects the jurisdiction of the court falling within the meaning of Order XIV Rule 2 of Code of Civil Procedure, 1908 can be termed a preliminary issue . A factual issue which requires trial and leading of evidence cannot be called a preliminary issue.
The above judgment was passed by the Delhi High Court in the matter of Dr. Ashok Singhal Vs. Dr. Inder Kumar Gupta & Ors., RFA No. 484/2018 decided on 09.10.2018.
The present appeal was filed by the plaintiff in the suit impugning the judgment of the trial court by which the trial court, during the course of leading of evidence, dismissed the suit by suo moto framing a preliminary issue and held that the suit as filed was not maintainable in the present form. The suit in question was for partition of a house jointly built by the four brothers. However, the piece of land on which the said house was built were two plots admeasuring 250 sq. yds and 350 sq. yds. While the plot admeasuring 250 sq.yds. was owned by the appellant/plaintiff and Defendant No. 3, the other plot was owned by Defendants nos. 1 and 2. The trial court only dismissed the suit as not maintainable in the present form by holding that the two subject plots cannot be merged into one plot, and that the suit for partition should not have been filed as one suit for partition, but two separate suits for partition for two separate plots had to be filed as the two separate plots were owned by different brothers.
The Delhi High Court categorically stated at the outset that a preliminary issue cannot be framed by a court when the preliminary issue is not a preliminary issue which falls under Order XIV Rule 2 CPC. An issue can be a preliminary issue only if two conditions are satisfied and these are, firstly, that the issue is a legal issue and secondly, the issue affects the jurisdiction of the court. The Court observed that in the present case, none of these two aspects of the issue either being a legal issue or the issue being one of jurisdiction, had been decided by the trial court by making any such observations and these aspects are the sine qua non under Order XIV Rule 2 CPC. The Court observed that in the present case, whether or not the four brothers being the appellant/plaintiff and the respondent nos.1 to 3/defendant nos.1 to 3 agreed to have a joint construction by merging the two plots, and, thereafter, each of the parties to have a 1/4th share each in the construction made, is a disputed question of fact which required trial, and which could only have been decided at the stage of final arguments after all the parties had led evidence.
The Court therefore, held that such a factual issue could not have been decided as a preliminary issue and in fact, the trial court had exceeded its jurisdiction by suo moto framing a preliminary issue during the stage when evidence was being led, and that too an issue which does not fall within the purview of Order XIV Rule 2 CPC because the issue is a factual issue and not a legal issue, much less being an issue of jurisdiction of the court.