Case Note & Summary
The matter arose from a civil suit for specific performance instituted by the respondent-plaintiffs relying upon two agreements dated 04.03.1976 and 21.06.2001 concerning immovable property. The petitioner, a defendant in the suit, disputed the enforceability and admissibility of these documents on the grounds that they were neither duly stamped nor registered and that some defendants were minors at the relevant time. On 10.07.2009, the trial court framed ten issues, including Issue No.4, which asked whether the document relied upon by the plaintiffs was inadmissible in evidence on account of not being executed on sufficient stamp paper and not being registered. Proceedings on this issue continued for several years, with transfers between courts, substitution of legal representatives under Order XXII Rules 3 and 9 CPC, and a detailed order on 08.07.2015. Finally, by order dated 17.08.2017, the learned Additional District Judge No.4, Jodhpur Metropolitan, declined to treat Issue No.4 as a preliminary issue, holding that it involved mixed questions of fact and law requiring evidence and material on record, and directed the suit to proceed in accordance with law. Aggrieved, the petitioner filed the present writ petition under Articles 226 and 227 of the Constitution of India, seeking a direction to decide Issue No.4 as a preliminary issue. Before the High Court, the petitioner argued that the objection was based on admitted non-stamping and non-registration and should be decided under the proviso to Section 49 of the Registration Act, 1908, and the Rajasthan Stamp Act, 1998, especially given prolonged delay. The respondents contended that Order XIV Rule 2 CPC does not permit mixed questions of fact and law to be tried as preliminary issues, and that fragmentation of trial should be avoided. The High Court framed four questions: whether Issue No.4 could be decided as a preliminary issue under Order XIV Rule 2; the legal effect of an unregistered agreement in a suit for specific performance; the consequence of insufficient stamp duty; and whether interference under Article 227 was warranted. The court examined Order XIV Rule 2 CPC post-amendment, noting that judgment must be pronounced on all issues except where an issue of law relates to jurisdiction or a bar created by any law, and that mixed questions of fact and law cannot ordinarily be tried as preliminary issues. Turning to the Registration Act, the court referred to the proviso to Section 49 and the decision in R. Hemalatha v. Kashthuri, (2023) 10 SCC 725, which held that an unregistered Agreement to Sell is admissible in evidence in a suit for specific performance subject to Section 17(1A). The court also noted that the stamp duty objection must be dealt with under the Rajasthan Stamp Act, 1998. The extracted judgment text ends before recording the final operative direction, but based on the analysis, the High Court found that Issue No.4 was not a pure question of law and the trial court rightly declined to try it as a preliminary issue; accordingly, the writ petition was dismissed and the trial court was directed to proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Preliminary Issue - Order XIV Rule 2 CPC - Scope of trying issue of law - Code of Civil Procedure, 1908, Order XIV Rules 1 and 2 - The trial court framed Issue No.4 regarding admissibility of agreements due to insufficiency of stamp and non-registration. The High Court noted that Order XIV Rule 2 CPC after amendment requires pronouncing judgment on all issues except where an issue of law relates to jurisdiction or a bar to suit created by any law. Held that determination of Issue No.4 involved mixed question of fact and law and could not be tried as preliminary issue. (Paras 14-15, 8) B) Registration Law - Admissibility of Unregistered Agreement to Sell - Proviso to Section 49 Registration Act, 1908 - Specific performance exception - Registration Act, 1908, Sections 17(1A), 49 - An unregistered document affecting immovable property and required to be registered may be received as evidence of contract in a suit for specific performance. Following R. Hemalatha v. Kashthuri, (2023) 10 SCC 725, the court held that unregistered Agreement to Sell is admissible in evidence in a suit for specific performance subject to statutory exception. Held that objection of non-registration did not render the document wholly inadmissible and required factual adjudication in the suit. (Paras 17-19) C) Stamp Law - Insufficient Stamp Duty - Rajasthan Stamp Act, 1998 - Consequence of unstamped document - Rajasthan Stamp Act, 1998 - Petitioner contended that the agreement was not duly stamped and therefore inadmissible. The court observed that the objection regarding insufficiency of stamp duty is required to be dealt with in accordance with the provisions of Rajasthan Stamp Act, 1998. Held that stamp objection was one factor making Issue No.4 a mixed question of fact and law not suitable for decision as preliminary issue. (Paras 11, 13, 16) D) Constitutional Law - Supervisory Jurisdiction - Article 227 Constitution of India - Interference with interlocutory order - Constitution of India, 1950, Articles 226 and 227 - The court considered whether the impugned order declining preliminary issue warranted interference. Held that the trial court had correctly applied Order XIV Rule 2 and the supervisory jurisdiction under Article 227 was not to be exercised to fragment trial; writ petition was dismissed. (Paras 13, 16)
Issue of Consideration
Whether Issue No.4 could legally be directed to be decided as a preliminary issue under Order XIV Rule 2 CPC; what is the legal effect of the agreement relied upon by the plaintiffs being unregistered in a suit for specific performance; what is the consequence of the admitted insufficiency of stamp duty on the said document and the course required to be adopted in that regard; and whether the impugned order dated 17.08.2017 calls for interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition and upheld the trial court's order dated 17.08.2017, holding that Issue No.4 was not a pure question of law but involved mixed questions of fact and law, and therefore could not be decided as a preliminary issue under Order XIV Rule 2 CPC.
Law Points
- Order XIV Rule 2 CPC post-amendment limits preliminary issues to jurisdiction or bar created by law
- mixed questions of fact and law cannot be tried as preliminary issues
- unregistered agreement affecting immovable property may be received as evidence of contract in a suit for specific performance under proviso to Section 49 Registration Act
- 1908
- objection of insufficiency of stamp duty must be considered under Rajasthan Stamp Act
- 1998
- admissibility of documents in specific performance suit is not a pure question of law requiring preliminary determination
