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.)
