Framing Preliminary Issue - Mixed Questions of Law & Fact : The Law

Justice G.P. Mathur

The Supreme Court in its decision reported as Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638, has laid down that Order 14 Rule 2 of Civil Procedure Code, 1908 confers no jurisdiction on a Court to decide the mixed questions of fact and law as a preliminary issue. It is clearly held in this judgment that where for a decision on an issue of law depends firstly upon the decision of a disputed fact then the issue cannot be tried as a preliminary issue. The Supreme Court has therefore made it clear that once there are disputed questions of facts which require trial, the issue cannot be decided as a preliminary issue. The relevant extracts from the aforesaid judgment are reproduced hereunder;

12. Sub-rule (2) of Order XIV Rule 2 CPC lays down that where issues both of law and of 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 that 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. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna vs. Brig. F.J. Dillon AIR1964 SC 497, and it was held as under:- 

"Under O. 14 R. 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit."

Though there has been a slight amendment in the language of Order XIV Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.

13. The plea raised by the contesting respondents is in fact a plea of demurrer. Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason why the opposite party should not be allowed to proceed further. In O.N. Bhatnagar vs. Smt. Rukibai Narsindas and others (1982) 2 SCC 244 (para 9) it was held that the appellant having raised a plea in the nature of demurrer, the question of jurisdiction had to be determined with advertence to the allegations contained in the statement of claim made by respondent 1 under Section 91(1) of the Act and those allegations must be taken to be true. In Roop Lal Sathi vs. Nachhattar Singh Gill (1982) 3 SCC 487 (para 24), it was observed that a preliminary objection that the election petition is not in conformity with Section 83(1)(a) of the Act i.e. it does not contain the concise statement of the material facts on which the petitioner relies, is but a plea in the nature of demurrer and in deciding the question the Court has to assume for this purpose that the averments contained in the election petition are true. Reiterating the same principle in Abdulla Bin Ali and others vs. Galappa and others (1985) 2 SCC 54, it was said that there is no denying the fact that the allegations made in plaint decide the forum and the jurisdiction does not depend upon the defence taken by the defendants in the written statement. In Exphar Sa and another vs. Eupharma Laboratories Ltd. and another (2004) 3 SCC 688 (para 9), it was ruled that where an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In this case the decision of the High Court on the point of the jurisdiction was set aside as the High Court had examined the written statement filed by the respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of Delhi High Court and also that the respondent No. 2 did not carry out business within the jurisdiction of the said High Court. Following the same principle in Indian Mineral & Chemicals Co. and others vs. Deutsche Bank (2004) 12 SCC 376 (paras 10 and 11), it was observed that the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on the point of demurrer.

14. The principle underlying Clause (d) of Order VII Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 where it was held as under in para 10 of the report: -

"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."

It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by sub-rule (d) of Order VII Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the Company Petition was barred by limitation has to be examined by looking into the averments made in the Company Petition alone and any affidavit filed in reply to the Company Petition or the contents of the affidavit filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the Company Petition cannot at all be looked into.

"Double Jeopardy" : Conviction on Same Facts in Subsequent Proceedings : Supreme Court

Justice Katju

The Supreme Court speaking through Justice Markandey Katju and Justice Gyan Sudha Mishra, in Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao and Ors., has dealt with the concept of 'Double Jeopardy'. The Supreme Court has held that the provisions of S. 300(1) of the Code of Criminal Procedure, 1973 is much wider than the provisions of Article 20(2) of the Constitution of India. The Bench has held, as under;

Learned counsel for the appellant submitted that the appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute. We find force in this submission.

It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states: "no person shall be prosecuted and punished for the same offence more than once."

On the other hand, Section 300(1) of Cr.P.C. States: "300. Person once convicted or acquitted not to be tried for same office:

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof."

Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The Appeal is allowed and the impugned judgment of the High Court is set aside.

'Res Judicata' : The Law

Justice Singhvi

The Supreme Court in M.Nagabhushana vs State Of Karnataka & Ors. has reiterated the principles and the concept of 'Res Judicata'. The Court, while examining various judicial pronouncements on the subject, has, inter alia, held as under;

14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.

16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi Vs. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:-

"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (former decision) on the following text of the ancient law- giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:-

"The plaintiff should be non- suited if the defendant avers: `in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".

There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane's Edition, page 15) to the same effect.

Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of `exceptio rei judicatoe" or plea of former judgment. The subject received considerable attention at the hands of Ruman jurists and as stated in Roby's Roman Private Law (Vol.II, page 338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of appeal".

(Page 391-392 of the report)

17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.

18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.

19. It is nobody's case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata.

20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that "the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law". [See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].

21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.

22. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms: "But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)."

23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.

24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA): "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4.

26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle: "......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata"

27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.

2G scam: Former Telecom Minister A. Raja Arrested

Source : NDTV

Hours after he was summoned to the CBI headquarters for questioning, former Telecom Minister A Raja was arrested for his alleged role in the 2G spectrum scam. 

He will be produced in a Delhi court within the next 24 hours.

Also arrested - two men who worked closely with Mr Raja - R K Chandolia, who served as his Personal Secretary, and Siddharth Behura, who was Telecom Secretary.

The Congress quickly asserted that the arrest of the DMK leader will not impact its alliance with Mr Raja's party in Tamil Nadu; the BJP focused on describing the action against Mr Raja as "too little, too late."

And across the political board, all players agree that the arrest is an attempt by the government to rebut charges that it has not acted against corruption - a refrain of the Opposition over the last few months. 

Mr Raja's arrest has been seen as a given in political circles for weeks now. He has been interrogated by the CBI four times since December, including on Monday. 

His homes and offices in Tamil Nadu and Delhi have been raided; his diary and computers were seized by the CBI and are likely to be presented against him as evidence.

In 2008, Mr Raja, as Telecom Minister sold valuable spectrum to telecom operators at prices that were determined in 2001; some companies that won 2G licences were new to the telecom sector, and sold some of their stake immediately for huge profits. The financial and procedural irregularities were pointed out almost immediately by the Opposition.

But it was only in November 2010 that the allegations seemed poised to push Mr Raja out of the Telecom Ministry. The catalyst was a report by the government's auditor - the Comptroller and Auditor General (AG) - which declared that Mr Raja was guilty of colluding with companies he favoured to grant them mobile licences, even though they were ineligible and had in some cases lied or misrepresented information in their applications. The figure of 1.76 lakh crores floated by the CAG as the value of the scam crushed any chances of Mr Raja's survival.

He was forced to resign, though he said in his defense that he had followed the policies introduced by his predecessors in the NDA government. He also said that by selling spectrum cheaply, he had delivered a country of mobile users - India's immoderate tele-density, he said, could be attributed directly to this.

Kapil Sibal, who replaced Mr Raja as Telecom Minister, described the CAG report as "completely erroneous" and said the government had suffered no losses on account of 2G allocation. Today, the BJP's Arun Jaitley said the fact that Mr Raja has been arrested neutralized Mr Sibal's claim. If the 2G process had been handled correctly, he asked, why was Mr Raja arrested?

Mr Jaitley also went on to target the Prime Minister, asking why he had kept silent for so long on the 2G scam when it was apparent that there were serious concerns about a senior minister in his cabinet.

The government has been accused repeatedly of shielding Mr Raja to protect its alliance with the DMK. At the Centre, the DMK is a key partner in the UPA coalition. In Tamil Nadu, the Congress props up the DMK government. And both parties have announced their partnership will continue for the state elections due to be held in May.

Mr Raja's arrest gives the Congress an enviable advantage now in that partnership. The Congress asserted today that Mr Raja's arrest is not a stress test for its relationship with the DMK. In Tamil Nadu, DMK sources tell NDTV that while Mr Raja's arrest could matter to voters in cities like Chennai and Madurai, rural voters have been disinterested in the 2G scam. 

So far, the DMK has stood firmly by Mr Raja, stressing that it would take action against him only if he were found guilty in the 2G spectrum scam. In December, the party organised a series of rallies to project Mr Raja as a reliable and admirable leader. 

Jayalalithaa won't let the DMK forget that. In the Tamil Nadu elections where she will confront the Congress-DMK alliance, Mr Raja gives her much ammunition. "This arrest only raises more questions than it answers...it seems to be a ruse to hoodwink the public and also to tell the Supreme Court that some action has been taken with regard to the Spectrum 2G Scam."

The CBI's investigation into the 2G scam is being closely monitored by the Supreme Court on the basis of several petitions, including one filed by former Law Minister Subramanian Swamy. On multiple occasions, the CBI has been accused by the court of mishandling the inquiry.

The 2G scam has also turned into one of India's biggest political battles. The Opposition refused to let Parliament function during the winter session after the government refused to sanction a Joint Parliamentary Committee (JPC). The BJP has threatened that the Budget session scheduled to start soon will see the same forces at work, unless a JPC is set up.

The government has argued that in addition to the CBI and the Supreme Court, the 2G scam is being studied by Parliament's Public Accounts Committee (PAC) which is headed by BJP leader Murli Manohar Joshi. Creating a JPC, it says, will only slow down the process of nailing who's to blame for the 2G scam. The Prime Minister has offered to appear before the PAC - Mr Joshi has said the offer will be considered at a later stage.

Today, Mr Jaitley said that the demand for a JPC has not been weakened by Mr Raja's arrest. "The JPC is on a much larger issue. Even on the culpability of Raja, now that they are admitting he prima facie did something wrong and arrested him, what was the Prime Minister doing when it was brought to his notice? So with such a track record of a cover up I don't think the government anywhere comes out in the clear," said Jaitley.