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2013 DIGILAW 908 (KER)

J. Anilkumar v. Bobby Joseph

2013-10-25

BABU MATHEW P.JOSEPH, THOTTATHIL B.RADHAKRISHNAN

body2013
JUDGMENT Thottathil B. Radhakrishnan, J. 1. This appeal is by the plaintiffs in a suit for declaration in relation to four documents executed by them. Those documents are dated 09.07.2007. They say that though styled as sale deeds, the impugned documents were actually security documents. The suit is filed seeking declaration and cancellation of those documents which stand with the nomenclature, “sale deeds”. The cause of action for the suit, as stated in the plaint, is relatable to a bundle of facts on 01.11.2011 and the suit is laid on 18.11.2011. The court below adjudicated on the issue of limitation as a preliminary issue and has held that the suit is barred and is beyond the period of limitation prescribed under Article 58 of the Schedule to the Limitation Act, 1963. That has resulted in the dismissal of the suit. Hence, this appeal. 2. The learned counsel for the appellants argued that the period of limitation prescribed under Article 58 is to run from the point of time when the right to sue first accrues and the question whether right to sue first accrues on the pleaded facts is not a pure question of law and could not, therefore, have been decided by the court below as a preliminary issue. 3. Per contra, the learned counsel for the contesting defendants argued that the suit is ill-motivated. He further argued that on the basis of the pleadings, the issue of limitation cannot be treated as one that requires a decision on any issue of fact. 4. As already noted above, Article 58 prescribes a period of limitation to obtain declaration. That residuary article in relation to suits for declaration prescribes that the time will begin to run when the right to sue first accrues. The plaintiffs' plea is that on 01.11.2011, the plaintiffs came to know that the defendants are going contrary to the sued documents, and that, they, though styled as sale deeds, are only security documents. Those documents are dated 09.07.2007. The question whether those documents were intended by the parties to be documents by way of security, or not by way of sale, and the limits and quality of evidence that could be adduced in relation to such a relief, are matters to be decided by the trial court. Those documents are dated 09.07.2007. The question whether those documents were intended by the parties to be documents by way of security, or not by way of sale, and the limits and quality of evidence that could be adduced in relation to such a relief, are matters to be decided by the trial court. The further question whether the plea as to the cause of action as stated in the plaint or whether such cause of action as pleaded has arisen at such a point of time that the suit would be safe from the bar of limitation can be decided, on the facts of the case in hand, only by looking into the other evidence as well. 5. In terms of Order XIV Rule 2(2) and in the light of the law laid in that regard in Lufthansa German Airlines v. Vij Sales Corporation [(1998) 8 SCC 623], it cannot but be held that an issue of limitation, to be decided as a preliminary issue, ought to be an issue of law only, meaning thereby, an issue that can be decided without adjudicating and deciding on any issue of fact. 6. The substance of this litigation does not permit the consideration of issue of limitation as a preliminary issue. Therefore, this appeal is entitled to succeed. In the result, (i) The order of court below on I.A.No.92/2013 holding that the suit is barred by limitation and the resultant judgment and decree are set aside. (ii) The suit is remitted to the court below for de novo consideration of all issues arising for decision, including the issue of limitation. (iii) It is clarified that whatever stated in this judgment is only to conclude that the issue of limitation in the case in hand could not have been decided as a preliminary issue. Any observation in this judgment shall not prejudice the right of parties at final trial, including as to the issue of limitation. The court below shall decide on the question of limitation untrammelled by anything stated in this judgment, except to the extent that the issue of limitation in this case is not an issue of law only. (iv) Refund court fee paid on this appeal to the appellants/plaintiffs through their learned counsel. (v) Parties are directed to mark appearance before the court below on 13.12.2013. (vi) Appeal ordered accordingly. (vii) No order as to costs.