Case Note & Summary
The Bombay High Court was hearing two writ petitions filed by M/s. Skyline Construction, a partnership firm, challenging an order dated 13th November 2017 passed by the Civil Judge, Senior Division, Panvel. The Trial Court had framed a preliminary issue as to whether the suit for specific performance of contract was maintainable in light of Section 16 of the Specific Relief Act, 1963, and ordered it to be decided before recording evidence. The background of the case involves Special Civil Suit No.30 of 2011 and Special Civil Suit No.32 of 2011 filed by the petitioner-firm for specific performance of contract. Respondent No.2 had filed applications seeking dismissal of the suits for inaction on the part of the petitioner since framing of issues. The Trial Court, instead of considering the application for dismissal, framed a preliminary issue on maintainability based on Section 16 of the Specific Relief Act. The petitioner challenged this order under Article 227 of the Constitution of India. The main legal issue was whether the Trial Court could frame a preliminary issue on maintainability under Section 16 of the Specific Relief Act without recording evidence. The petitioner argued that the application filed by Respondent No.2 was for dismissal due to inaction, but the Trial Court proceeded on a different footing. The respondent contended that the suit was not maintainable as the plaintiff failed to aver readiness and willingness. The High Court analyzed Order XIV Rule 2 of the Code of Civil Procedure, 1908, which allows a court to try a preliminary issue only if it is a pure question of law. The court held that the issue of maintainability under Section 16 of the Specific Relief Act involves both averments and proof of readiness and willingness, which is a mixed question of law and fact. Therefore, it cannot be decided as a preliminary issue without recording evidence. The High Court set aside the impugned order and directed the Trial Court to proceed with the suit in accordance with law, including recording evidence on all issues.
Headnote
A) Civil Procedure - Preliminary Issue - Order XIV Rule 2 CPC - Maintainability - A preliminary issue can be tried only if it is a pure question of law, not a mixed question of law and fact - The issue of maintainability of a suit for specific performance under Section 16 of the Specific Relief Act, 1963, involves both averments and proof of readiness and willingness, which is a mixed question of law and fact - Hence, it cannot be decided as a preliminary issue without recording evidence (Paras 6-8).
B) Specific Relief Act - Section 16 - Readiness and Willingness - Mixed Question of Law and Fact - The requirement under Section 16 that the plaintiff must aver and prove readiness and willingness to perform the contract is a mixed question of law and fact - It cannot be determined solely on the basis of the plaint and plaint documents without evidence - The Trial Court erred in framing a preliminary issue on maintainability based on Section 16 (Paras 6-8).
Issue of Consideration
Whether the Trial Court was justified in framing a preliminary issue regarding maintainability of the suit for specific performance under Section 16 of the Specific Relief Act, 1963, and ordering it to be decided as a preliminary issue before recording evidence.
Final Decision
The High Court allowed the writ petitions, set aside the impugned order dated 13th November 2017 passed by the Civil Judge, Senior Division, Panvel, and directed the Trial Court to proceed with the suit in accordance with law, including recording evidence on all issues.
Law Points
- Preliminary issue under Order XIV Rule 2 CPC can only be a pure question of law
- not a mixed question of law and fact
- Maintainability of suit for specific performance under Section 16 of Specific Relief Act requires averments and proof of readiness and willingness
- which is a mixed question of law and fact
- Trial court cannot frame a preliminary issue on maintainability based on Section 16 without recording evidence
Case Details
2018 LawText (BOM) (04) 48
Writ Petition No.13214 of 2017 along with Writ Petition No.13484 of 2017
Dr. Shalini Phansalkar-Joshi, J.
Mr. S.M. Oak, i/by Mr. Sagar A. Joshi, for the Petitioners; Mr. P.S. Dani, Senior Counsel, with Mr. Prashant D. Patil, for Respondent No.2
M/s. Skyline Construction, A Partnership Firm, Through its Partners: Sukhdev Bhimrao Shinde & Ors.
Joma Chaahu Mhatre (Since Deceased), Through LRs.: Pandurang Joma Mhatre & Ors.
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Nature of Litigation
Writ petitions under Article 227 of the Constitution of India challenging an order of the Civil Judge, Senior Division, Panvel, framing a preliminary issue on maintainability of a suit for specific performance.
Remedy Sought
The petitioner-firm sought to quash the order dated 13th November 2017 passed by the Trial Court framing a preliminary issue on maintainability under Section 16 of the Specific Relief Act, 1963.
Filing Reason
The Trial Court framed a preliminary issue on maintainability of the suit for specific performance under Section 16 of the Specific Relief Act, 1963, and ordered it to be decided before recording evidence, which the petitioner contended was erroneous as the issue was a mixed question of law and fact.
Previous Decisions
The Trial Court had framed issues in Special Civil Suit No.30 of 2011 and Special Civil Suit No.32 of 2011. Respondent No.2 filed applications for dismissal of the suits for inaction. The Trial Court, instead of deciding those applications, framed a preliminary issue on maintainability.
Issues
Whether the Trial Court was justified in framing a preliminary issue on maintainability of the suit for specific performance under Section 16 of the Specific Relief Act, 1963, and ordering it to be decided as a preliminary issue before recording evidence.
Submissions/Arguments
Petitioner: The Trial Court erred in framing a preliminary issue on maintainability under Section 16 of the Specific Relief Act, as the application filed by Respondent No.2 was for dismissal due to inaction, not on maintainability. The issue of maintainability under Section 16 is a mixed question of law and fact and cannot be decided as a preliminary issue without evidence.
Respondent: The suit for specific performance is not maintainable as the plaintiff failed to aver and prove readiness and willingness to perform the contract, as required under Section 16 of the Specific Relief Act, 1963.
Ratio Decidendi
A preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure, 1908, can be tried only if it is a pure question of law. The issue of maintainability of a suit for specific performance under Section 16 of the Specific Relief Act, 1963, involves both averments and proof of readiness and willingness, which is a mixed question of law and fact. Therefore, it cannot be decided as a preliminary issue without recording evidence.
Judgment Excerpts
The Trial Court has committed a grave error in framing such issue as to the preliminary objection to the maintainability of the Suit and trying it as preliminary issue.
The issue of maintainability under Section 16 of the Specific Relief Act, 1963, is a mixed question of law and fact and cannot be decided as a preliminary issue without recording evidence.
Procedural History
The petitioner-firm filed Special Civil Suit No.30 of 2011 and Special Civil Suit No.32 of 2011 for specific performance of contract. Issues were framed. Respondent No.2 filed applications for dismissal of the suits for inaction. The Trial Court, on 13th November 2017, framed a preliminary issue on maintainability under Section 16 of the Specific Relief Act, 1963, and ordered it to be decided before recording evidence. The petitioner challenged this order by filing Writ Petition No.13214 of 2017 and Writ Petition No.13484 of 2017 under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Specific Relief Act, 1963: Section 16
- Code of Civil Procedure, 1908: Order XIV Rule 2
- Constitution of India: Article 227
