P.K.S. Baghel, J.@mdashThis civil revision u/s 115 of the Code of Civil Procedure, 1908 is directed against the order dated 25th February, 2014 passed by the Additional Civil Judge (Senior Division), Court No. 2, Aligarh in Original Suit No. 1381 of 2011 (Anil Kumar v. Sanjay Jain), whereby the Court below has rejected the application (177-Ga2) moved by the revisionist-defendant in the suit and refused to decide the preliminary issue. The essential facts are that the plaintiff-respondent instituted Original Suit No. 1381 of 2011 (Anil Kumar Sharma v. Sanjay Jain) in the Court of the Civil Judge (Senior Division), Aligarh seeking a relief for the recovery of money for a sum of Rs. 12,00,000/- alongwith the interest.
2. The case of the plaintiff is that the plaintiff and the defendant were on the good terms and they had a long standing family relationship. The revisionist-defendant expressed before the plaintiff his some financial constraints in running his business, thus, he was in the need of financial help. The plaintiff extended his helping hand to the defendant by giving a loan of Rs. 14,00,000/- on the different dates. The revisionist-defendant has returned an amount of Rs. 2,00,000/- thereof. However, when the revisionist-defendant did not pay the remaining outstanding amount, the plaintiff made repeated requests therefor, thereupon the revisionist-defendant got annoyed and he threatened the plaintiff of dire consequences. Having no option left, the plaintiff made a complaint against the revisionist-defendant to the Superintendent of Police, City, Aligarh. On the said complaint, the revisionist-defendant was called upon by the Police and in presence of the Superintendent of Police (City) he admitted Rs. 12,00,000/- to be outstanding and acknowledged it in writing on 10th June, 2009. On the said document, the brother of the revisionist-defendant has also made his signature. It was also signed by the two witnesses. In the said acknowledgment the revisionist-defendant had assured that he would pay back Rs. 1,00,000/- within 15 days and rest of the amount shall be paid within a year. It is stated that, however, the revisionist-defendant failed to honour his commitment. Thus, having no other option, the plaintiff filed a suit, being Original Suit No. 1381 of 2011, against the defendant for recovery of a sum of Rs. 12,00,000/- and the interest thereon with effect from 25th May, 2009. The plaintiff also moved an application under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short, the "CPC"), wherein he sought attachment of the shop as well as residential flat of the revisionist-defendant on the apprehension that he may abscond from the district.
3. The trial Court issued summons to the revisionist-defendant and directed him to furnish security of the amount sought to be recovered and fixed 26th August, 2011 as the next date. On the next date i.e. 29th August, 2011 the trial Court directed the attachment of the property of the revisionist. It is stated that said order of the trial Court was challenged before this Court in First Appeal From Order No. 3303 of 2011 (Sanjay Jam @ Sanjay Kumar Jain v. Anil Kumar Sharma), which was allowed by this Court on 10th April, 2012 and the order of attachment was set aside.
4. The revisionist-defendant filed his written statement in the suit and denied the claim of the plaintiff.
On 22nd November, 2011 seven issues were framed by the trial Court. The Issue Nos. 3 and 4 are relevant for the instant revision, therefore, they are extracted below:
5. The revisionist-defendant moved an application, vide Paper No. 46-C2, for deciding the Issue Nos. 3 and 4 as preliminary issue. Said application was rejected by the trial Court vide order dated 05th January, 2012 taking the view that Issue Nos. 3 and 4 shall be decided after taking evidence of the parties. Aggrieved by the order dated 05th January, 2012 the revisionist-defendant preferred Civil Revision No. 128 of 2012 (Sanjay Jain alias Sanjay Kumar Jain v. Anil Kumar Sharma) before this Court.
6. The revisionist-defendant moved another application (Paper No. 105-C) before the trial Court for deciding the issue "whether the paper dated 25th May, 2009 (acknowledgement) is admissible in evidence?" The trial Court vide order dated 16th March, 2012 held that said issue is necessary to be decided after taking evidence of the parties, against which order the revisionist-defendant filed another revision, being Civil Revision Defective No. 21 of 2012 (Sanjay Jain Alias Sanjay Kumar Jain v. Anil Kumar Sharma), before this Court.
7. Yet the defendant-revisionist again filed an application (Paper No. 131-C) under Order VII Rule 11 CPC, which was also rejected by the trial Court on 05th September, 2012. Dissatisfied with the said order of the trial Court, the defendant filed third revision, being Civil Revision No. 478 of 2012 (Sanjay Jain @ Sanjay Kumar Jain v. Anil Kumar Sharma).
8. All the aforesaid three civil revisions i.e. Civil Revision Defective No. 21 of 2012, Civil Revision No. 128 of 2012 and Civil Revision No. 478 of 2012 were eventually dismissed by this Court on 30th September, 2013.
9. The revisionist-defendant thereafter moved an application for amending the written statement, which was allowed and additional issues were framed on 09th January, 2014, in which Issue No. 9 reads as under:
"9. Whether the suit of the plaintiff is barred by Section 14 and Section 18 of the U.P. Regulation of Money Lending Act, 1976?"
By the time said amendment of the written statement was allowed and Additional Issue No. 9 was framed, the plaintiff''s evidence had concluded on 28th January, 2014 and the date of the defendant''s evidence was fixed. The defendant-revisionist instead of filing any application moved yet another application (Paper No. 177 C2) for deciding such Issue as preliminary issue. Said application (Paper No. 177 C2) of the revisionist-defendant has been rejected by the trial Court vide impugned order dated 25th February, 2014.
10. I have heard Sri Pankaj Agarwal, learned Counsel for the revisionist, and Sri Sudhanshu Pandey, learned Counsel for the respondent.
Sri Pankaj Agarwal, learned Counsel for the revisionist, submits that Section 18 of the Uttar Pradesh Regulation of Money Lending Act, 1976 (for short, the "Money Lending Act") provides bar on certain suits by money-lenders, therefore, the suit itself was barred by the provisions of the said Act and it is liable to be dismissed at the very threshold. He contended that for the purpose of deciding an issue that the suit is barred by any provision of law, neither any evidence is required to be looked into nor any aspect except the assertions made in the plaint is to be looked into. Therefore, the reason mentioned by the Court below in rejecting the application of the revisionist-defendant to decide the Issue No. 9 as preliminary issue, suffers from manifest error of law. Sri Agarwal has also drawn the attention of the Court to Section 14 of the Money Lending Act, which provides that every transaction of money-lending in relation to a loan advanced in contravention of Section 14(1) shall be void. Lastly, he urged that the impugned order falls under ''case decided'', therefore, a revision u/s 115 CPC is maintainable because if the preliminary issue is decided in favour of the revisionist-defendant, then it would result in dismissal of the suit. Sri Agarwal has placed reliance on the judgements of the Supreme Court in
11. Sri Sudhanshu Pandey, learned Counsel for the respondent, submits that the trial Court has rightly rejected the application of the defendant under Order XIV Rule 2 CPC exercising its discretionary power, and it is well-settled that it is not obligatory for the Court to decide an issue as a preliminary issue and generally, all issues arising in a suit or proceeding should be tried together and the judgment should be pronounced on those issues. Sri Pandey further submits that the issues whether the plaintiff is a money-lender and whether the money was given to the defendant in ordinary course of business or not, require evidence and the same is to be led by the defendant and, as such, said issues involve the issue of fact and law, which requires evidence. Sri Pandey has placed reliance on the judgments of the Supreme Court in
12. I have considered the rival submissions advanced by the learned Counsel for the parties and perused the record.
Order XIV Rule 2 CPC was amended by the CPC (Amendment) Act, 1976 w.e.f. 01st February, 1977. For the sake of convenience, Order XIV Rule 2 CPC, as it stands after the amendment, reads as under:
"2. Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(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 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,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues and until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
A simple reading of the said provision would make it clear that under the amended provision the Court has to pronounce the judgment on all the issues inspite of the fact that a case may be disposed of on preliminary issue. The only exception carved out is that if the Court is of the opinion that the suit may be disposed of on the issue of law which relates to the jurisdiction of the Court or creates a bar to the suit in law, such issue may be treated as a preliminary issue. The intendment of the Legislature is manifest that if there is a question of fact or mixed question of law and fact, then the Court must decide the suit on merits alongwith the other issues.
13. In
"13...........Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the abovequoted 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 issues 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."
14. This Court in the case of
15. Similar view has been taken by other High Courts also. Reference may be made to the judgments in
16. Coming to the present case, the revisionist-defendant has filed a number of applications under the different provisions of CPC, as mentioned in the preceding paragraphs. His three revisions filed against the orders of the Court below have been dismissed by this Court on 30th September, 2013. From the records it transpires that initially the issues were framed on 22nd November, 2011 and after three years of filing of the suit the revisionist has moved the application (Paper No. 177-Ga2) on 18th February, 2014. By the said time the plaintiff''s evidence has been concluded. Previously, the application of the revisionist-defendant under Order VII Rule 11 CPC to reject the plaint was rejected by the trial Court and the same has been approved by this Court vide order dated 30th September, 2013.
17. In this case, the principal ground of the revisionist-defendant to raise the preliminary issue is that the suit was barred by the provisions of Section 18 of the Money Lending Act. Section 18 of the Money Lending Act reads as under:
"18. Bar on certain suits by money-lenders.--No suit on the basis of any loan, agreement or security referred to in sub-section (1) of Section 15 shall be instituted by a money-lender, unless at the time of advancing such loan or making such agreement or taking such security--
(a) such money-lender held a valid certificate of registration; or
(b) such money-lender had applied for such certificate and the same had not been refused; or
(c) the period specified in the proviso to sub-section (1) of Section 7 had not expired."
18. A perusal of the said section would show that a money-lender cannot file a suit unless he held a valid certificate of registration. In the present case, whether the plaintiff-respondent was a money-lender or not in terms of the definition u/s 3(6) of the Money-Lending Act and whether the financial help/assistance given by the plaintiff to the defendant-revisionist was a loan as defined u/s 3(5) of the Money-Lending Act or not, need determination after the evidence is adduced on the said issue. Thus, it cannot be said that this issue can be decided as a pure question of law. So far as the judgments relied upon by the learned Counsel for the revisionist are concerned, I find that they do not help the revisionist. The decision of Kamala (supra) relates to the dispute of Order VII Rule 11(d) CPC and has no application to the facts of the present case. The case of S.K. Banerji (supra) also relates to Order VII Rule 11 CPC. Similarly, the case of Rajeev Mishra (supra) deals with the dispute under Order VII Rule CPC. As stated above, the application (paper No. 131-Ga) of the defendant-revisionist under Order VII Rule 11 CPC was rejected earlier on 05th September, 2012, aggrieved against which the revisionist filed Civil Revision No. 478 of 2012, which also came to be dismissed by this Court on 30th September, 2013.
For the aforesaid premised reasons, I find that the impugned order passed by the Court below does not suffer any error of law. Hence, the revision lacks merit and it is liable to be dismissed. Accordingly, it is dismissed. No order as to costs.
