Preliminary Issues Are Determined Purely On Point Of Law In Isolation To Facts: Tripura High Court

The Tripura High Court recently observed that main controversies in a suit cannot be adjudicated as 'preliminary issues' as they require a full fledged trial and leading of evidence. Justice T. Amarnath Goud added that issues to be determined preliminary would exclusively and purely be on law point in isolation to facts but not mixed question of law and fact.

The bench observed,

"Issue which is of legal nature and affects the jurisdiction of Court falling under O-XIV, R-2(2) can be termed as preliminary issue. A factual issue which needs the trial and leading evidence for decision cannot said to be preliminary issue. If decision on the issue of law is depending upon the decision of factual aspects, in that event the Code does not empower the Court to decide that issue of law on framing of preliminary issue."

The Court was hearing a bunch of petitions filed under Section 115 CPC read with Article 227 of the Constitution, challenging an order rejecting the petitioners' plea for dismissal of the partition suit filed by the Plaintiffs (Respondents herein).

The Petitioner had argued that possession in a partition suit has to be understood only in the context who, is in actual physical possession; and in the instant case, the pro-forma respondents had taken the plea of adverse possession. It was contended that since pro-forma respondents are in possession of the suit property, the partition of the said land is not possible without ejecting them. 

Thus, the Petitioner argued that the partition suit was not maintainable and the Court below ought to have decided the preliminary issue at the first instance. Reference was made to Order XIV Rule 2(2) CPC which mandates that in a petition, under the said provision, the Court would take the statements made in the plaint, on the face value and thereupon, would proceed to decide the maintainability of the suit.

The original plaintiffs opposed the plea by contending that the pro-forma respondents are merely tenants over schedule land. 

The Court said it is crystal clear that it has discretion to decide the suit on the matter of jurisdiction or bar created by any law for time being in-force provided that the issues to be determined preliminary would exclusively and purely be on law point.

Citation: 2022 LiveLaw (Tri) 36