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2016 DIGILAW 1053 (MP)

Lokumal Nandwani v. Tumato technology Pvt. Ltd.

2016-11-21

S.A.DHARMADHIKARI

body2016
ORDER : S.A. Dharmadhikari, J. Heard. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has challenged the validity of the order dated 15.10.2014 by which the application preferred by the petitioner under Order 14, Rule 2 CPC has been rejected. 2. The learned counsel for the petitioner contends that a suit for recovery of money has been filed by the Respondent/Plaintiff on 04.01.2011 on the basis of cheque issued on 05.05.2016, therefore, the suit is barred by limitation. He further contends that the trial Court has framed as many as five issues and Issue No.5 is with regard to the limitation. The petitioner had moved an application under Order 14, Rule 2 CPC on the ground that Issue No.5 may be decided as a preliminary Issue. In view of the admitted facts in respect of question of Limitation it was not necessary for the trial Court to defer the decision on the Preliminary Issue No.5. The issue of Limitation can be decided only on the pleadings of the parties. The suit itself is barred by limitation since the same has been filed after three years, the Trial Court ought to have dismissed the same. The trial Court erred in deferring the matter for recording evidence. It is urged that the impugned order so far as it defers the decision on issue No.5 for recording evidence be set aside and the matter be remitted to the trial Court to decide the Issue No.5 with regard to Limitation first. 3. The trial Court while deciding the application came to the conclusion that the Respondent/Plaintiff has disputed the date of cause of action, the matter involves a mixed question of fact and law and the same cannot be decided as a preliminary issue without recording evidence. 4. In the present case, the Respondent/Plaintiff had entered into an agreement with one Subhash Khushiramani for purchase of Land and the petitioner Lokumal Nandmani had played the role of middleman and for this purpose a cheque for Rs.51,000/- was issued to the petitioner on 05.05.2006. On 3.1.2009 it was informed that Subhash Khushiramani is not in a position to register the sale-deed. On 3.1.2009 it was informed that Subhash Khushiramani is not in a position to register the sale-deed. The petitioner contended that since the suit was filed after three years, the same is barred by limitation whereas the contention of the Respondent/Plaintiff is that the suit was filed only after the non performance of the agreement when the petitioner failed to pay the amount. Accordingly, there is a factual dispute with regard to the actual date of cause of action. The said question can be decided only after recording evidence. 5. The core question which crop up consideration is whether an issue of Limitation could be taken up as a preliminary Issue. 6. The Apex Court in Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala (dead) through L.Rs. and Others, reported in 2015 (5) SCC 674 held that: "In the case at hand, we find that unless there is determination of the fact which would not protect the plaintiff under Section 10 of the Limitation Act the suit cannot be dismissed on the ground of limitation. It is not a case which will come within the ambit and sweep of Order 14, Rule 2 which would enable the court to frame a preliminary issue to adjudicate thereof. The learned Single Judge, as it appears, has remained totally oblivious of the said facet and adjudicated the issue as if it falls under Order 14, Rule 2. We repeat that on the scheme of Section 10 of the Limitation Act we find certain facts are to be established throw the lis from the sphere of the said provision so that it would come within the concept of limitation. The Division Bench has fallen into some error without appreciating the facts in proper perspective. That apart, the Division Bench, by taking recourse to Articles 92 to 96 without appreciating the factum that it uses the words " transferred by the trustee for a valuable consideration" in that event the limitation would be twelve years but in the instant case the asseveration of the plaintiff is that the trustee had created three settlement deeds in favour of his two daughters and a granddaughter. The issue of consideration has not yet emerged. The issue of consideration has not yet emerged. This settlement made by the father was whether for consideration or not has to be gone into and similarly whether the property belongs to the Trust as Trust is understood within the meaning of Section 10 of the Limitation Act has also to be gone into. Ergo, there can be no shadow of doubt that Issue 1 that was framed by the learned Single Judge was an issue that pertained to the fact and law and hence, could not have been adjudicated as a preliminary issue. Therefore, the impugned order is wholly unsustainable. 7. In another case, the Apex Court in the case of Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives and Others, reported in 2015 (6) SCC 412 , has held that, "36. Order 14, Rule 2 of the Code of Civil Procedure, confers power upon the court to pronounce judgment on all the issues. But there is an exception to that general rule i.e. where issues both of law and fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on the issue of law, it may try that issue first if that issue relates to the jurisdiction of the court or a bar to the suit created by any law. 37. Order 14, Rule 2 of the Code of Civil Procedure as it existed earlier reads as under:- "2. Issues of law and of fact:- Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it think fit, postpone the settlement of the issues of fact until after the issues of law have been determined." 38. A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the court to try the issues of law in the first instance and to postpone the settlement of issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the court that notwithstanding that a case may be disposed of on a preliminary issue, the court has to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the court that if the court is of opinion that the case or any part thereof may be disposed of "on an issue of law only", it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the court or a bar to the suit created by a law in force." 8. In the light of the judgments of the Apex Court and the facts and circumstance of the case, the trial Court has not committed any error in rejecting the application under Order 14, Rule 2 C.P.C. and has rightly deferred the decision on the issue to be decided along with other issues after recording evidence. 9. No case is made out for interference, the petition is bereft of merits and substance. Accordingly, the same is dismissed. Let a copy of this order be sent to the Trial Court by FAX. No order as to costs.