Puranda Behera Vs. Dr. Narayan Shankar Behera - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the plea of limitation may be at the best a mixed question fact and law and cannot be a pore question of law and factual aspects have to be gone into to arrive at a.a. pasayat, j.1. dismissal of a suit on the ground that it is barred by law of limitation, has brought the plaintiff before this court.2. the genesis of the order was a petition filed by the defendant purported to be one under order 14, rule 2 of the code of civil procedure, 1908 (in short the 'code') to determine the issue relating to limitation as a preliminary issue, and to dismiss the same on the ground of limitation. though another prayer relating to jurisdiction of the court was raised, the same was abandoned. the learned subordinate judge, sundargar was of the view that question relating to limitation was a question of law and could be decided as a preliminary issue. he referred to certain statements alleged to have been made by the plaintiff and held that on the facts it was established that the suit which was one for specific performance of a contract was barred by limtation the sole question to be decided it this, revision application, is whether the issue relating. to limitation could be taken up for hearing, as preliminary issue. order 14, rule 2(1) of the code,, as it stands- now after amendment by act 104 of 1976 reads a follows :'notwithstanding, that a case may be disposed1 of on a preliminary issue, the court shall, subject to the provisions. of sub-rule (2), pronounce judgment on all issues.'the provisions impetrate pronouncement of judgment of s issues, notwith- standing, that a case may be on a pre-liminary issue. exceptions ape carved out in sub-rule (2) which inter aliar pro-vide that where issues both- of saw 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 an issue of law only, where it relates to jurisdiction of the court or a bar to the suit created by any law for the time being in force, it may try that issue first. the plea of limitation may be at the best a mixed question fact and law and cannot be a pore question of law and factual aspects have to be gone into to arrive at a. conclusion whether bar of limitation applies.3. the of enactment of order 14, rule 2 of the code is to avoid piecerneal trial of the suit and only where the suit can be disposed of by determination of a pure issue of law exercise permitted under sub-rule (2) can be undertaken. the position his been succinctly laid down in the case of madhabananda ray and anr. v. m/s spencer and company ltd : 64.(1987) clt 560: , in that decision reference was made to an earlier decision of this court where plea of limitation was raised in the prayer for adjudication of the suit on a preliminary issue, in the case of ram saraf v. mani del and anr. : ilr 1970 cuttack 152. while attempt should be taken to avoid protracted litigation, yet unless point in issue goes to the very root of jurisdiction of the court or bar created under a statute, piecemeal trial has to be avoided and adjucicated as imperated under order 14, rule 2 of the code has to be undertaken. therefore, the conclusions of the learned subordinate judge do not stand to reason and order dated 11-4-1989 is set aside. the learned subordinate judge would now take up trial of the suit for its disposal in accordance with law.the civil revision is accordingly allowed. no costs.