Mixed question of fact and Law actually does not exist.

1.  Order XIV of CPC, 1908, deals with Issues. Sub Rule (4) of Rule 1 of Order XIV, says: Issues are of two kinds: (a) Issues of Fact; (b) Issues of Law. Don’t know who is the genius who has formulated this third term: mixed question of law and fact.

2.  This third category of “mixed question of fact and law”, actually doesn’t exist, and is thoroughly misconceived. The Courts, it is observed, are quite reluctant in deciding the legal proceedings, at the threshold, ordinarily on the grounds that the “Plea” agitated is a mixed question of law and fact. Let us try to comprehend the vagueness of this expression.

3.  A fact is composed of Law. A fact can never be looked upon in isolation to Law. That is to say, an assertion of a fact must be in consonance to the mandate of Law; and a factual assertion must derives its legitimacy from Law itself.

4.  Whence one say that a plea / assertion of a fact raises a mixed question of law and fact, he / she appears to be saying that the plea raised, is unsustainable in law and false. There is inherent fallacy in such plea. This is because, if the plea alleges to be unsustainable in law, the issue of its falsity doesn’t arise; and if the plea is false, its truthfulness needs to be tested, and its unsustainability in law, doesn’t arises.

5.  Therefore, every plea which is advanced, either raises a pure question of fact or pure question of Law, but not both. This is because, whence the Court ventures to decide the pure question of fact, the legal sanctity of the fact asserted is presumed; and thence the Court proceeds to decide its truthfulness.  And whence the Court ventures to decide the pure question of Law, the legal sanctity of the assertion of fact or plea, is under challenge, and the issue of its truthfulness or falsehood doesn’t arises. Therefore, it is a fallacy to term any issue as a mixed question of law and fact.

6.  The whole idea behind the legal principle is that a right or a litigation which is sought to be prosecuted, or a defense which is advanced, must be legally sustainable, before it is sought to be decided at the touchstone of evidence or otherwise. [AIR 2017 Civil Cases 3057]

7.  The “Legal sustainability of a Plea/Fact/case” is one thing and the “truthfulness / falsity of a Plea/Fact”, is another; as the former is examined, and is decided at the altar of established principles of interpretation of law / on the premise of precedents (doctrine of stare decisis); and the latter is examined, tested and is decided on the basis of evidences being led. And if the former is not legally sustainable, there is no occasion for the Courts to go for the latter.

8.  In my brief understanding of things of Law, every Appellate or Revisional Jurisdiction, and most cases in Writ Jurisdictions, including Cases before Statutory Tribunals, raises pure question of Law. The parties must crystallize central issue involved and urge, “The Case at hand raises a pure question of law”. And remember 1998 (1) BCR 397 supra.

9.  Now let us quickly examine the Hon’ble Supreme Court ruling on mixed question of law and fact, that actually holds the field as on today.

10.  The Kamlakar Eknath Salunkhe ruling [(2015) 7 SCC 321] took the view that the issue of Limitation cannot be decided as a preliminary issue. In Foreshore ruling [AIR 2015 SC 2006], the Apex Court took the view that Limitation being an issue of jurisdiction, can be decided as a preliminary issue u/s 9A of CPC, 1908. In this backdrop, a reference was made before three Judges Bench, which ruled [AIR 2019 SC 5125] that under the provisions of section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law and not a mixed question of law and fact by recording evidence. It further ruled that the issue of Limitation, being not an inherent jurisdictional issue, and being a mixed question of fact and Law, cannot be decided as a preliminary issue.

11.  The entire thrust of the argument was - the plea of limitation is a mixed question of law and facts and cannot be decided as an abstract principle, divorced from the facts. The expression “to entertain the Suit” which followed the expression “jurisdiction”, punctuated the entire reasoning of the Hon’ble Court, in arriving at the conclusion that Section 9A contemplated cases only of Inherent lack of jurisdiction” and not other jurisdictional errors.

12.  The basic fallacy in the above ruling was to regard the issue of Limitation as mixed question of Law and fact. If this proposition is accepted, then it must also be accepted that to decide the issue of Inherent lack of jurisdiction, the underlying facts of the Case have to be looked into, which would akin to raising mixed question of law and fact.

13.  At the cost of repetition, the issues must not be seen from the lens of mixed question of law and fact. As deliberated hereinabove, the issues of law and fact are always, always distinct and independent.

14.  What are question of Law, or of fact. They are actually the issues of Law or of facts, which essentially arises in every litigation, be it Suit, Appeal, Revisional jurisdiction, any criminal proceedings, Execution, and so on.

15.  Issues of fact arises when one of the party alleges the existence or the non- existence of a factual situation; and the adversary deny of the same. Issues of Law arises when one of the party advances a plea (A plea may be understood as an argument advanced, generally an inference or the conclusion, drawn from undisputed facts), stating, expressly or impliedly, that it is the position of law as it stands, and the adversary deny the said position of Law.

16.  Identifying Issues arising in a lis, as whether the lis raises a pure question of fact or of Law, is of greatest significance, because, accurate identification decides the length of the lis, and of course the final outcome. Because, according to established legal principle as contained in Order XIV Rule 2(2) of the CPC, 1908, if the lis can be decided on the basis of question of law itself, the Court may not venture into the question of facts.

17.  It deserves mention here a Ruling of Hon’ble Bombay High Court. The Petitioners were in Writ Jurisdiction. The issue before the Court was inherently complex the property tax Assessment. There were cluster of facts, allegations and counter allegations. The easiest approach of the Court would have been to relegate the Petitioners to Statutory Appeal provided under the MMC Act, 1888. In fact, the Appeal was already preferred and pending before the Small Causes Courts at Mumbai. Nevertheless, the Hon’ble Court exercised the Writ jurisdiction, took the pains and found that despite the cluster of allegation and counter allegations, the matter at hand raised pure question of law and goes to the root of the matter. [1998 (1) BCR 397]

18.  What is required is, the controversy must be narrowed down to the fullest, and then to find out, if it raises a pure question of law or of fact. And, it is not a Rocket Science to identify Issues of fact or of Law.

19.  It needs to be appreciated that exercise of framing of Issues must start from principal Reliefs claimed, and not from the pleadings of the parties. The Reliefs claimed by the Party lies at the heart of any litigation, which also decides the jurisdiction of the Court. Every relief claimed, presupposes existence or the non existence of certain facts, which the party claiming, must prove to exist or not to exist, to claim judgment in his favour. Section 101 r/w “facts in issue” in the interpretation Clause of the Evidence Act is profound in this respect.

20.  Therefore, the Courts whilst framing Issues, may look at the principal reliefs claimed, followed by imagination of set of facts which must have been clearly pleaded by the Plaintiff; and then proceed to search for those Pleadings of the Plaintiff; and if those pleadings are there in the Plaint, then, search for the stand of the Defendant on such pleadings.

21.  Therefore, in the course of above exercise, if the Court finds, or if any of the party alleges, any assertion of fact or plea advanced, as frivolous or unsustainable in law, the said plea raises a pure question of Law. If any of the party alleges a fact (material to the Relief claimed), and the adversary deny of the same, the said plea raises a pure question of fact.

22.  Therefore, whether a “Plea / Issue” raises a pure question of law, or raises a pure question of fact, the same may be ascertained by employing the following test -

23.  If the Plea / issue raised, can be decided by employing the mandate of law, the Plea / Issue raises a pure question of law. In such pleas, the basic material facts cannot be in dispute. If the Plea / issue raised, have to be decided by leading evidence, the Plea / Issue raises a pure question of fact.

24.  A Case or a plea may throw up both question of fact and of law. But that does not mean that it is a Case of mixed question of law and fact. Both questions stand independently.  Any such plea, raising both question of law and fact, have to be decided independently, by first deciding the question of law and then deciding the question of fact. And then the law, so arrived at, may be applied, to the fact, that has been arrived at.

 

Sandeep Jalan

Advocate

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