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2014 DIGILAW 1868 (RAJ)

Babulal v. Kanhiyalal

2014-11-20

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition under Article 226 and 227 of the Constitution of India is directed against order dated 30.05.2014 passed by the trial court, whereby, the application filed by the respondents under Section 6 of the Limitation Act, 1964 ('the Limitation Act') read with Section 22C(2) of Legal Services Authority Act, 1987 ('the Act of 1987') has been ordered to be decided along with other issues and application filed by the petitioner under Order 14, Rule 2 CPC seeking decision of the issue relating to limitation as preliminary issue has been rejected. 2. Facts in brief may be noticed thus : the respondent plaintiff filed an application for recovery of a sum of Rs. 6,04,000/- before the Permanent Lok Adalat, Nathdwara; the proceedings came to be terminated by the Permanent Lok Adalat on 20.03.2009 on noticing that the petitioner herein was not interested in disposal of the matter by the said forum; where after, the present suit was filed by the respondent-plaintiff for recovery of a sum of Rs. 10,48,000/-; along with the suit, the plaintiff filed an application under Section 6 of the Limitation Act read with Section 22C(2) of the Act of 1987 seeking condonation of delay. 3. A reply to the said application was filed by the petitioner. 4. Where after, an application under Order 14, Rule 2 CPC was filed on behalf of the petitioner, inter alia, indicating that before framing other issues, the application/aspect pertaining to condonation of delay needs to be decided first by the Court. 5. The application under Order 14, Rule 2 CPC filed by the petitioner was opposed by the respondent. 6. The trial court by the impugned order noticed the pendency of application by plaintiff seeking condonation of delay and considered the application filed by petitioner under Order 14, Rule 2 CPC and came to the conclusion that as documents pertaining to pendency of proceedings before Lok Adalat/Permanent Lok Adalat have been filed, therefore, it would be appropriate to decide the aspect pertaining to limitation after framing issue and as the said issue is not purely legal but mixed issue of law and facts and, therefore, disposed of the application filed by the petitioner as well as the application filed by the plaintiff in the light of the said observations. 7. 7. It is submitted by learned counsel for the petitioner that the trial court committed grave error of law in coming to the conclusion that the issue pertaining to condonation of delay was a mixed question of law and facts; the nature of issue does not require leading of evidence, inasmuch as, the pendency of proceedings before the Lok Adalat/Permanent Lok Adalat between the period 10.02.2003 and 30.03.2009 is not disputed; the issue of limitation goes to the root of the matter and the application filed by the plaintiff was required to be disposed of before hand and, even if, issue was required to be framed, a preliminary issue in this regard was required to be framed and decided by the trial court. 8. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner; it was, inter alia, submitted that the issue of limitation is a mixed question of law and fact and cannot be decided by the trial court as a preliminary issue; it was further submitted that the application has been filed by the petitioner only with a view to protract the litigation and, therefore, the same was rightly rejected by the trial court. 9. Reliance was placed on Sri Shiba Prasad Das v. Vysa Teli Jatiya Samiti, Cuttak, 2013 (3) CCC 44 (Ori.) , Varun Resorts Ltd. v. Pan Electrical Services & Ors., 2013 (4) CCC 235 (Bom.) , Harish Chandra v. State of Rajasthan & Ors., 2012 WLC (Raj.) UC 781 , Rameshwar v. Ishwar Devi & Ors., 2012 WLC (Raj.) UC 764 , Vijay Kaushik v. ADJ (Fast Track) Tijara, District Alwar & Ors., 2012 WLC (Raj.) UC 224 and B.B. Export v. Vijay Singh Bedla & Ors., 2012 WLC (Raj.) UC 8. 10. I have considered the rival submissions made by learned counsel for the parties. 11. From the facts stated hereinbefore, it would be noticed that the plaintiff filed application before the Lok Adalat/Permanent Lok Adalat, which remained pending for over six years, where after, the same was decided by the Permanent Lok Adalat on coming to the conclusion that the respondent (petitioner herein) was not interested in disposal of the case through Lok Adalat; where after, the suit was filed on 02.04.2009 along with an application under Section 6 of the Limitation Act read with Section 22C(2) of the Act of 1987 seeking condonation of delay. 12. The applications seeking condonation of delay/exclusion of time filed in appeal/application/suit are required to be decided by the Court before hand or, in any case, at the earliest so as to take care of the appeal/application/suit on merits; however, if the Court comes to the conclusion that it would be convenient to decide the aspect pertaining to limitation after framing issue in this regard, the same can be decided after framing a issue by the trial court; whether after framing the issue, the issue relating to limitation should be decided as a preliminary issue or not would depend on the facts and circumstances of each case. 13. Order 14, Rule 2 CPC enables the Court to try a issue as preliminary issue if the decision on the said issue can dispose of the suit and the issue relates to the jurisdiction of the Court or Bar created by any law for the time being in force. 14. Issue relating to limitation is one such issue which, if can be decided on the admitted facts available on record, can very well be decided as a preliminary issue. 15. As noticed hereinbefore, in the present case, the petitioner has clearly indicated in the writ petition that the facts as averred by the plaintiff in the application filed by him are matters of record and/or are admitted and, therefore, it cannot be said that the issue in the present case is a mixed question of law and facts so as to prevent the Court from deciding the same as a preliminary issue and, therefore, the order passed by the trial court cannot be sustained. 16. So far as the judgments cited by learned counsel for the respondent are concerned, the principles enunciated therein pertaining to parameters to exercise powers under Order 14, Rule 2 CPC are not in dispute, however, none of the judgments cited create the Bar regarding exercise of jurisdiction in a case where the facts are not in dispute and, as such, the said judgments have no application to the facts of the present case. 17. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 30.05.2014 passed by the trial court is quashed and set aside. The application filed by the petitioner under Order 14, Rule 2 CPC is allowed. 17. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 30.05.2014 passed by the trial court is quashed and set aside. The application filed by the petitioner under Order 14, Rule 2 CPC is allowed. The trial court is directed to frame issue pertaining to limitation and decide the same as a preliminary issue. No order as to costs.Petition allowed. *******