R.C. Wahi Vs. Lal Singh and anr. - Court Judgment

Excerpt:
civil procedure code, 1908 - order 14 rule 2(2b)--bar of limitation --section 115--revision--powers of court--trial court rejected request to record evidence on all issue, but allowed only on issue of limitation --no prohibition against --trial court only to decide preliminary issue--sub-rule 2(b) also bars limitation --no legal basis--case falls in limitation exception--dismissed. - - (9) whether the suit is bad for non-joinder of necessary parties?cyriac joseph, j.1. in this civil revision petition, the petitioner challenges an order dated 2.3.1998 passed by the learned additional sessions judge, delhi in suit no. 196 of 1996 rejecting the request of the plaintiff (petitioner herein) to record evidence on all the issues framed in the suit and deciding to record evidence only on the issue of limitation.2. the petitioner is the plaintiff in suit no. 196 of 1996. according to the averments in this revision petition, the plaintiff filed the suit for specific performance, cancellation of the sale deed and consequential relief of injunction. on the pleadings of the parties, the following issues were framed by the trial court:(1) whether the plaintiff is entitled for specific performance of the agreement dated 17.12.1979?(2) whether the sale deed dated 2nd december, 1998 is liable to be cancelled?(3) whether the suit is within limitation?(4) whether plaintiff is entitled for a decree of permanent injunction regarding the western portion of khasra no. 422/3?(5) whether the sale deed dated 2nd december, 1988 is without consideration qua defendant no. 1? (6) whether the sale deed dated 2nd december, 1998 is the result of fraud?(7) whether the plaintiff has no locus standi to file the present suit for cancellation of the sale deed dated 2nd december, 1988?(8) whether the plaint is liable to be rejected under order 7, rule 11 of the cpc?(9) whether the suit is bad for non-joinder of necessary parties?(10) whether this court has no pecuniary jurisdiction to try the suit?(11) whether the suit has no been properly valued for the purposes of court-fee and jurisdiction?(12) whether the suit is not maintainable in respect of plot no. 422/3/2?(13) whether the plaintiff is litigating for restoration and allotment of plot no. 422/2 east (1 bigha six biswas) which is now numbered as 422/3/1 in delhi high court? if so, its effect?(14) relief.issues nos. 3 and 8 were treated as preliminary issues and thereafter the trial court dismissed the suit holding that the suit was barred by time. the plaintiff filed an appeal rfa no. 140 of 1992 in the high court and it was disposed of by the high court on 23.1.1996. the high court held that in order to determine the question as to when the limitation commenced to run in the facts and circumstances of the case and when the limitation to bring the suit for specific performance would expire, it would need some evidence. the court took note of the fact that the original defendant no. 1 had stated in his written statement that he had no refused to perform the agreement. the court opined that all that should be a matter of examination and cross-examination. the high court set aside the impugned judgment and decree of the court below and remanded the case back to the trial court 'directing the trial court to record evidence on the issue of limitation'. when the case was taken up by the trial court, the counsel for the plaintiff requested the court to fix the case for evidence on all the issues. but the counsel for the defendant urged that the evidence should be limited to the question of limitation. the counsel for the plaintiff submitted that after the remand of the case with the direction to record evidence, evidence should be recorded on all the issues. however, the trial court by the impugned order dated 2.3.1998 decided to record evidence only on the issue of limitation.3. aggrieved by the said order dated 2.3.1998 of the trial court the petitioner has filed this revision petition praying for setting aside the impugned order dated 2.3.1998 and for a direction to the trial court to record evidence on all the issues in accordance with the amended provision of rule 2 of order xiv, cpc.4. admittedly, issue nos. 3 and 8 were treated as preliminary issues and the trial court decided preliminary issue no. 3 and dismissed the suit holding that the suit was not filed within the period of limitation and hence was barred by time. neither the plaintiff nor the defendant had objected to the decision of the trial court to treat issue nos. 3 and 8 as preliminary issues and no appeal had been filed against the said decision. the plaintiff had filed the rfa no. 140 of 1992 only against the dismissal of the suit on the ground that it was barred by time. the high court found that it would have been proper to require the parties to lead evidence as to when the limitation would begin to run and when the suit would become time barred. the high court was of the view that in order to determine the question as to when the limitation would commence and when the limitation would expire, some evidence would be required. hence the high court set aside the order of the trial court and remanded the case back to the trial court 'directing the trial court to record evidence on the issue of limitation'. obviously, the high court, by its order dated 23.1.1996 passed in rfa no. 140 of 1992, remanded the case back to the trial court to decide afresh the preliminary issues after recording evidence on the said issue. the said order of the high court had become final. hence, the learned additional sessions judge was justified in deciding to record evidence only on the issue of limitation and not on all the issues framed in the suit. the decision of the learned additional sessions judge was strictly in accordance with the order of the high court in rfa no. 140 of 1992 and hence the said decision cannot be assailed by the plaintiff and this revision petition is liable to be dismissed.5. learned counsel for the petitioner could not point out any provision of law which prohibits the trial court from recording evidence only for the purpose of deciding a preliminary issue. in the absence of any such prohibition and in view of the fact that the plaintiff had not objected to the decision of the trial court to try issue nos. 3 and 8 as preliminary issues and in the light of the observations and directions in the order dated 23.1.1996 of the high court in rfa no. 140 of 1992, the learned additional sessions judge was not legally bound to record evidence on all the issues. as already pointed out, the direction of the high court was 'to record evidence on the issue of limitation'.6. learned counsel for the petitioner tried to draw support from rule 2 of order xiv of the code of civil procedure. rule 2 of order xiv of cpc reads thus:2. court to pronounce judgment on all issues-(1) notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.(2) 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 an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force,and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.the provision contained in rule 2 of order xiv, cpc do not prevent the trial court from trying the issue of limitation as a preliminary issue. on the contrary sub-rule (2) of rule 2 enables and authorises the trial court to try the issue of limitation as a preliminary issue. sub-rule (2) of rule 2 gives a discretion to the trial court to try as preliminary issue, any issue of law relating to jurisdiction of the court or a bar to the suit crated by any law for the time being in force, if the trial court is of opinion that the case may be disposed of on that issue of law. the trial court was of the opinion that the issue of limitation was an issue of law on which the suit could be disposed of. the bar of limitation under section 3 of the limitation act, 1963 is 'a bar to the suit created by a law in force' envisaged by sub-rule 2(b) of rule 2. that is why the plaintiff had agreed and the trial court had decided to treat the issue of limitation as a preliminary issue. learned counsel for the petitioner made a half-hearted attempt to argue that the bar of limitation under section 3 of the limitation act is not 'a bar to the suit' mentioned in sub-rule 2(b) of rule 2 of order xiv, cpc. obviously the argument is wrong and cannot be accepted. in my view, sub-rule 2(b) applies not only in cases of the bar of civil suit but also in cases of the bar of limitation. hence it cannot be said that the trial court exercised its discretion improperly.7. for deciding a preliminary issue, if it is necessary to record evidence, the trial court is competent to record evidence for deciding the said preliminary issue. in such a situation the trial court is not compelled by any law to record evidence on all the issues framed in the suit. it should also be noted in this context that the mandate under sub-rule (1) is subject to the provisions of sub-rule (2) of rule 2. thereforee, in a case in which sub-rule (2) of rule 2 applies, sub-rule (1) of rule 2 is not attracted. in fact sub-rule (2) provides a limited exception to sub-rule (1). the present case falls under that limited exception. hence the trial court had the discretion to try the issue of limitation as a preliminary issue and to record evidence only on the issue of limitation.8. learned counsel for he petitioner invited my attention to the decisions in state of andhra pradesh and anr. v. bandalam srinivasulu and ors., : air1982ap291 ; mek singh and ors. v. bhagh singh and ors., (1986) pl r89 44; smt. sulochanda devi bubna v. gobinda chandra nag and ors., : air1986cal430 ; the manager, bettiah estate v. bhagwati saran singh, : air1993all2 ; and hyderabad asbestos cement products ltd. v. mohamad argobasi enterprises and anr., : air1989ap286 . i have carefully read and considered those decisions. none of those decisions supports the case of the petitioner.9. in view of what has been stated above, the impugned order of the learned additional district judge is not vitiated by any illegality. the petitioner's contentions have no legal basis. no case has been made out for exercise of jurisdiction under section 115 of the cpc. hence the revision petition is dismissed. parties are left to bear their own costs.revision petition dismissed.