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2003 DIGILAW 395 (ORI)

Baishnab Charan Ray v. Debraj Sahoo

2003-06-19

P.K.TRIPATHY

body2003
ORDER 19.6.2003 — Heard. 2. This revision petition is disposed of in the following manner. 3. Defendant No. 2 in Money Suit No.2 of 1999 of the Court of Addl. Civil Judge (Jr. Division), Baramba is the petitioner and plaintiff is the opposite party No.1 in this revision. That is a suit with the claim of damage on the ground of malicious prosecution in S.T. No. 415 of 1997 of the Court of Asst. Ses¬sions Judge, Athagarh. 4. It is not disputed at the Bar that defendant No.1 was the informant and defendant No.2 was the Investigating Officer of Barmaba P.S. Case No. 24 of 1993. Defendant No.2 investigated into the case and submitted charge-sheet for the offences, inter alia, punishable under Section 436, I.P.C., and as a consequence the concerned G.R. Case No. 24 of 1993 was committed to the Court of Session, and learned Assistant Sessions Judge, Athagarh regis¬tered the case as S.T. No. 415 of 1997, conducted the trial and delivered the judgment on 15.7.1998 acquitting the plaintiff who was the accused in that case. After acquittal plaintiff has instituted the suit for malicious prosecution claiming damage to the tune of Rs. 10,000/- (ten thousands). It appears from the certified copy of the order dated 12.12.2002 of the learned Civil Judge (Jr. Division), Baramba that the suit was filed on 12.10.1999, i.e., after lapse of one year and three months from the date of the aforesaid order of acquittal. After entering appearance in the suit defendant No.2 filed written statement, inter alia, challenging to the maintainability of the suit stat¬ing that it is barred by law of limitation. After filing of that written statement issues were settled and Issue No.3 reads “Is the suit barred by law of limitation”. On 5.7.2001 defendant No.2 filed an application to dispose of the above quoted issue as preliminary issue and to dispose of the suit accordingly. Plain¬tiff contested to that application and claimed for disposal of the suit on all the issues in terms of the provision in Order 14, Rule 2(2), C.P.C. After hearing the parties and referring to the case of Puranda Behera v. Dr. Narayan Shankar Behera, 1991 (I) OLR 455, learned Civil Judge (Jr. Plain¬tiff contested to that application and claimed for disposal of the suit on all the issues in terms of the provision in Order 14, Rule 2(2), C.P.C. After hearing the parties and referring to the case of Puranda Behera v. Dr. Narayan Shankar Behera, 1991 (I) OLR 455, learned Civil Judge (Jr. Division) rejected the applica¬tion on the ground that the issue involves a mixed question of fact and law in as much as plaintiff has also prayed to condone the delay under Section 5 of the Limitation Act. 5. Learned counsel for the petitioner while referring to the provision in Order 14, Rule 2, C.P.C. and the ratio in the case of Puranda Behera (supra) also refers to a Division Bench decision of this Court in the case of Madhabananda Ray and anoth¬er v. M/s. Spencer and Company Ltd., 64 (1987) C.L.T. 560 argues that in the present case the question of limitation being consid¬erable on mere perusal of the averment in the plaint and the provision in Article 74 of the Limitation Act, 1963 and since no factual investigation or recording of evidence is necessary, therefore, the court below has failed to exercise the jurisdic¬tion vested in him in accordance with law. He further argues that the provision in Section 5 of the Limitation Act is not applica¬ble to condone delay for institution of a suit and therefore learned Civil Judge (Jr. Division) should have decided the afore¬said Issue No.3 on the question of limitation as a preliminary issue. Accordingly he argues to set aside the impugned order and to direct the Court below to consider that issue as a preliminary issue. 6. In the case of Puranda Behera (supra) a similar matter came for consideration and this Court found the conduct of the Presiding Officer in referring to certain statements on record for deciding that issue as an investigation not permissible and accordingly set aside the order passed by the trial Court in deciding the preliminary issue. 7. In the case of Madhabananda Ray and another (supra), a Division Bench of this Court in a concurrent judgment have been pleased to give their respective views on the position of law. 7. In the case of Madhabananda Ray and another (supra), a Division Bench of this Court in a concurrent judgment have been pleased to give their respective views on the position of law. In that context, referring to various judgments of this Court deliv¬ered after the amendment of the Code of Civil Procedure in the year 1976, have been pleased to propound that the position of law as it stood prior to the amendment has materially changed empow¬ering and authorising the trial Court to take up a preliminary issue if such preliminary issue can decide the suit without recording any evidence or without entering into any factual controversy. in that context, a decision of Patna High Court reported in A.I.R. 1979 Patna 34 (Dhirendranath Chandra v. Apurba Krishna Chandra and others) was referred to with approval. The relevant portion from that quoted passage is quoted for ready reference : “....There is, however, nothing in Sub-rule (2) which in my opinion makes it obligatory for the Court to try such an issue first in all cases. If, therefore, the Court is of opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in Clauses (a) and (b) of Sub-rule (2) as a preliminary issue before taking up other issues, I do not think it has committed an error touching jurisdiction.” 8. Keeping in view the fact situation involved in this case, the above noted proposition of law enunciated by this Court, the extent of jurisdiction which is to be exercised by this Court under Section 115, C.P.C. and the principle enunciated by Patna High Court, this Court does not find it to be a case of jurisdictional error for refusing to decide the issue on limita¬tion as a preliminary issue. However, it will be proper for the Court below to read the statutory provision before interfering with the same or expressing opinion on its scope and applicabili¬ty in as much as learned Civil Judge has stated in the impugned order that a factual finding is necessary to condone the delay which has occurred in institution of the suit. However, it will be proper for the Court below to read the statutory provision before interfering with the same or expressing opinion on its scope and applicabili¬ty in as much as learned Civil Judge has stated in the impugned order that a factual finding is necessary to condone the delay which has occurred in institution of the suit. If learned Civil Judge would have taken care to read the provision in Clauses (b), (j) and (1) of Section 2 read with Sections 4 and 5 of the Limita¬tion Act, 1963, then he would not have opined to consider condo¬nation of delay under Section 5 of the Limitation Act for insti¬tution of the suit beyond the prescribed period of limitation. It is therefore always better to have the temperament to learn and habit to read with understanding before giving a decision on interpretation of law and its applicability to facts and circum¬stances involved in the case. It is well said that ‘to err is human’ and in such cases it is proper for one to ‘learn from his own mistake’. 9. Be that as it may, in course of argument learned coun¬sel for the petitioner states that petitioner shall file appro¬priate application to invoke jurisdiction of the Court below for rejection of the plaint in view of the provision under Order 7, Rule 11 (d), C.P.C. Thus, if any such application shall be moved by the petitioner, that be considered by the Court below in accordance with law but expeditiously and providing due opportu¬nity of hearing to both the parties. For the reasons indicated above, the Civil Revision stands disposed of without interfering with the impugned order. Revision disposed of.