Sita Ram Singh vs Jamuna Prasad Dhobi @ Jamuna R on 28 September, 2011

Patna High Court – Orders
Sita Ram Singh vs Jamuna Prasad Dhobi @ Jamuna R on 28 September, 2011
                   IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 CWJC No.9328 of 2011
                                       Sita Ram Singh
                                             Versus
                            Jamuna Prasad Dhobi @ Jamuna R
                                          -----------

06. 28.09.2011 Heard the learned counsel for the petitioner.

This writ application has been filed by the

defendant-petitioner against the order dated 04.12.2010

passed by Munsif I, Sasaram in title suit no.86 of 2008

whereby the learned Court below rejected the application

filed by the petitioner under Order 14 Rule 2 of the Code of

Civil Procedure praying for deciding the issue of limitation

as preliminary issue.

The learned counsel for the petitioner

submitted that the plaintiff filed the suit praying for

declaring that the sale deed dated 23.01.1989 is void

document and the suit has been filed in the year 2008.

Therefore, it was barred by limitation. In such

circumstances, the application was filed but the learned

Court below rejected the said application. The learned

counsel relied upon 2005(4) P.L.J.R. 150(Md. Ekram @

Md. Ekramul Haque and others vs. Sk. Jhaksha and

others) and submitted that Article 58 of the Limitation Act

is applicable and the plaintiff had the knowledge of

execution of the sale deed in the year 1989 but the suit

has been filed in the year 2008. In such circumstances,

the learned Court below should have decided the issue as
2

preliminary issue and should have dismissed the suit itself.

From perusal of the decision cited by the

learned counsel for the petitioner, it appears that in that

case, the challenge was to the survey entry. In the instant

case at our hand, the plaintiff filed the suit primarily for

declaration of title and confirmation of possession and also

for declaration that the registered sale deed is void

document. The plaintiff further prayed for declaration that

the defendant did not derive title and possession on the

basis of the said illegal document.

So far the decision cited by the petitioner is

concerned, in the said decision, Article 58 of the Limitation

Act was considered. In the present case, the declaration is

for title and moreover date of knowledge is important,

which depends on evidence.

So far deciding the question of limitation as

preliminary issue is concerned, according to the petitioner

himself, there were many proceedings between the parties

from before and, therefore, the plaintiff had the knowledge

about the existence of the sale deed. In my opinion,

therefore, the issue depends on the facts and evidences

that have to be gone into. Therefore, here the issue of

limitation in the present case appears to be disputed

question of fact and law and not a pure question of law as

involved in the decision cited.

Order 14 Rule 2 of the Code of Civil Procedure
3

mandates that the Court shall pronounce judgment on all

issues. This Rule 2 is subject to Sub Rule 2. The Court

may decide an issue as preliminary issue if the same is not

only question of law but also it must relates to the

jurisdiction of the Court or a bar to the suit created by any

law for the time being in force.

As has been held above, since in the present

case, the question of limitation is not a pure question of

law and it depends on the facts and evidences and further,

after amendment of Code of Civil Procedure in 1976, it is

not obligatory on the part of the Court to decide an issue

as preliminary issue. The Court has the discretion. In the

present case, the learned Court below has exercised the

discretion judiciously, therefore, I am not inclined to

interfere with the impugned order in exercise of jurisdiction

under Article 227 of the Constitution of India as there is no

jurisdictional error.

Accordingly, this writ application is dismissed.

Saurabh                                      ( Mungeshwar Sahoo, J.)
 

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