[O 14 R 2 CPC] Trial Court Can't Decide Question Of Limitation As Preliminary Issue If It Involves Mixed Question Of Facts & Law: Sikkim HC

The Sikkim High Court has held that examination of the issue of limitation by the Trial Court as a preliminary issue in an application under Order XIV Rule 2 of the Code of Civil Procedure, 1908 (CPC) is erroneous, if the issue of limitation contains a mixed question of facts and law. The Trial Court can examine preliminary issue only pertaining to issue of law, it held.

Justice Bhaskar Raj Pradhan was deciding on the petitioner's challenge to the Trial Court's order where the Trial Court decided against the petitioner (defendant no.1) and in favour of the respondent/plaintiffs on a preliminary issue regarding limitation

The petitioner/defendant had filed an application under Order XIV Rule 2 read with Section 151 of CPC before the Trial Court for framing a preliminary issue on the question of limitation. Petitioner claimed that the suit of the respondent/plaintiffs was not maintainable in law, as the admission made by plaintiff no.1 during his cross-examination indicated that the suit was barred by limitation. Thus, trial court could decide this as a preliminary issue and dispose the suit.

The Trial Court took up the issue as sought by petitioner/defendant as a preliminary issue. The Trial Court had found that petitioner/defendant was relying on selective lines from the cross-examination of plaintiff no.1. The court had noted that the documents relied by petitioner/defendant did not prove that the plaintiffs had knowledge of the property transfer before 2017, and there was no clear admission of this. Thus, it decided that the suit was not barred by limitation.

The High Court stated under Order XIV Rule 2, a court does not have jurisdiction to decide a mixed question of fact and law, unless the facts of the case are clear from the plaint itself.

“A perusal of Order XIV Rule 2 of the CPC makes it clear that where issues both of law and of fact arises in the same suit, and the court is of the opinion that the case or any party 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 enforced, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determine, and may deal with the suit in accordance with the decision on that issue” it observed.

In the present case, the Court noted that the issue of limitation was a mixed question of fact and law.

It observed that there was no admission about the issue of limitation either in the plaint or in the evidence on affidavit of plaintiff no.1 It stated that the plaintiffs learned for the first time from an RTI response dated 13.03.2020 that their ancestral property, was transferred to defendant no.1. During the cross-examination, plaintiff no.1 stated that he had visited the DC office in Gangtok in December 2016 and January 2017 solely to seek information about the status of the suit property. It was during this visit that he became aware that the suit property had already been transferred to defendant no.1.

The Court therefore remarked that “The application under Order XIV Rule 2 of the CPC however, sought to rely upon a portion of one part of the cross-examination…to seek the examination of the issue of limitation as a preliminary issue. Evidently, the issue of limitation which was sought to be raised in the application under Order XIV Rule 2 of the CPC was a mixed question of fact and law.”

It held that the based on the facts of the case, the trial court could not have answered the question of limitation as a preliminary issue. It thus set-aside the order of the Trial Court.

The Court rejected the application filed by petitioner/defendant under Order XIV Rule 2 CPC and stated that the Trial Court can consider the issue of maintainability of the suit at the end of trial, along with other issues.

Case title: Phigu Tshering Bhutia vs. Shri Karma Samten Bhutia & Ors. (W.P. (C) No. 19 of 2023)

Citation: 2024 Live Law (Sik) 9

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