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2001 DIGILAW 1134 (PNJ)

Sukhdev Singh alias Sabha v. Surjit Kaur

2001-10-15

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - Surjit Kaur has filed suit for grant of compensation by way of damages on account of the murder of Sukhdev Singh. The suit was contested by the defendant (now petitioner). Certain issues arising out of the pleadings of the parties were framed by the trial court on 11.11.1997. One of the issues relates to the point of limitation. The petitioner filed an application that this issue be treated as preliminary issue. The application was dismissed vide the impugned order. Hence this revision. 2. I have heard Shri D.S. Pheruman, learned counsel for the petitioner and Shri Rajesh Bhateja, learned counsel for the respondent. Issue No. 4 reads as under :- "Whether the suit is time-barred ? OPD." Whether this issue is purely a question of law or a mixed question of law and fact ? Whether the issue can be treated as preliminary issue is the main point under consideration in this civil revision. 3. Issue of law has not been defined in the Code. Normally if answer to an issue is determinable on the basis of some principle of law, that issue is called an issue of law, as observed in Daljit Singh v. Joginder Singh Sekhon, AIR 1985 P&H 184. Also that if the parties want to lead evidence on an issue, that ceases to be an issue of law. Under the old Code all the issues of law were required to be tried as preliminary issues but according to the new rule the issues of law as mentioned in sub-rule (2) can be tried as preliminary issues. In the new rule 2(1) the word "shall" has been replaced by the word "may". That show that a discretion has been given to the Court to try the issue as a preliminary issue or not according to the circumstances of each case. Mixed issues of law and fact cannot be treated as preliminary issues. In this regard, reference is made to S.S. Khanna v. F.J. Dhillon, AIR 1964 SC 497. 4. The question of limitation is a mixed question of law and fact and it would require evidence to determine whether the suit was within limitation or not and it cannot be treated as preliminary issue. In this regard, reference is made to S.S. Khanna v. F.J. Dhillon, AIR 1964 SC 497. 4. The question of limitation is a mixed question of law and fact and it would require evidence to determine whether the suit was within limitation or not and it cannot be treated as preliminary issue. Where the trial Court is of the opinion that it would be more expedient to try all the issues together and refused to try and decide any issue of law, it commits no error in touching its jurisdiction. 5. Looking into the case from another angle, whether the petitioner can be permitted to raise the objection that question of limitation be treated as preliminary ? No. The plaintiff has already closed the evidence. The suit is at final stage, as observed by the trial Court. Therefore, I am of the considered view that the discretion exercised by the Court is not arbitrary, requiring interference by this Court in the exercise of its revision jurisdiction. In Vadivelu v. Sundaram and others, 2000(8) SCC 355, it has been held that revisional powers of High Court can be exercised and trial Court orders set aside where there has been an error of jurisdiction or flagrant violation of law. There is nothing on the record to show that the Court has exercised the jurisdiction not vested in it. In view of the aforesaid, there is no merit in this revision petition. The same is dismissed. Revision dismissed.