It is a well settled principle of law that issues relating to jurisdiction or limitation are predominantly the issues of law. If the Court believes that the whole suit could be disposed of on any such issue of law, the Court should frame a preliminary issue and decide the same. Even in such cases, it is necessary for the Court to express an opinion whether such issue proposed to be decided as preliminary issue was an issue of law alone or whether it was a mixed question of law and fact. In case of the former, the issue could well be decided as preliminary issue. But in cases where such issue is a mixed question of law and fact, the tenability of the same should be examined at the trial stage and not at the preliminary stage.
2. An office objection was taken that the suit was prima facie barred by the law of limitation. The matter was, therefore, posted before the Court for removal of the office objection so that the plaint could be registered and regularly numbered. The learned Judge of the lower Court rejected the plaint by recording a finding that the suit was barred by limitation without even framing a preliminary issue on the question of the suit being barred by limitation. The plaint itself contained an averment to the effect that the suit was not barred by limitation and, therefore, it was not proper to decide that issue conclusively at the threshold of the inception of the suit depriving the plaintiff the opportunity of making out his case how the suit was not barred by limitation.
3. Order VII Rule 6 of C.P.C. provides that in a case where the suit is instituted after the expiration of the period prescribed by law of limitation, the plaint shall show the ground upon which exemption from such law is claimed provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint if such ground is not inconsistent with the grounds set out in the plaint.
4. In the concluding part of para 8 of the plaint, an averment with regard to the suit not having been hit by law of limitation finds place. It is pleaded in the said paragraph that the cause of action arose from the date of knowledge of fraud under Section 72 of the Contract Act read with Section 17 of the Limitation Act, at the same time from the date of demand and refusal under Article 113 of the Limitation Act and that there is no bar of limitation to the suit.
5. The above pleading in the plaint clearly shows that the requirements of Order VII Rule 6 of CPC are clearly complied with. In that view of the matter, therefore, the office objection with regard to the bar of limitation and the order passed by the Court holding that the suit was barred by limitation and directing the plaint to be returned to the plaintiff was patently devoid of jurisdiction or in other words, the learned Judge exercised the jurisdiction which was not vested in him. The entire paragraph 18 of the plaint sets out the particulars how the amount was advanced to the defendants, how it was agreed to be repaid by the defendants and how the suit claim of the plaintiff stood acknowledged from time to time. It was not necessary for the plaintiff to show in the plaint itself as to how the plaintiff proposed to prove the averments made in the plaint and through which witness and on the basis of which document, the suit claim could not be treated as having been barred by limitation. If the learned Judge had minutely gone through the contents of paragraph 8 of the plaint, he would have realised that the necessary pleadings had already been made. If, under the given facts and circumstances, there was any cause for the Court to believe that the averments were not proved and on the point of limitation itself the suit was liable to be dismissed, he should have followed the procedure prescribed by Order 14 Rule 1 of C.P.C., which provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Under Sub-Rules (4) and (5) of Rule 1 of Order 14 of CPC, it is provided as under :-
"(4) Issues are of two kinds :-
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their Pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend."
6. It is a well settled principle of law that issues relating to jurisdiction or limitation are predominantly the issues of law. If the Court believes that the whole suit could be disposed of on any such issue of law, the Court should frame a preliminary issue and decide the same. Even in such cases, it is necessary for the Court to express an opinion whether such issue proposed to be decided as preliminary issue was an issue of law alone or whether it was a mixed question of law and fact. In case of the former, the issue could well be decided as preliminary issue. But in cases where such issue is a mixed question of law and fact, the tenability of the same should be examined at the trial stage and not at the preliminary stage.
7. I fail to appreciate how this provision of law has escaped the notice of the trial Judge. In any case, the learned trial Judge was not at all justified in directing the plaint to be returned to the plaintiff by recording a finding at the stage of institution of the suit only that the suit was barred by limitation without caring to ascertain whether the pleading of the plaintiff relating to the bar of limitation was so predominant on the face of the plaint that the learned Judge did not find it necessary to examine the merits of the plaintiff's case that the suit was not barred by limitation.
8. The views expressed by this Court stand corroborated from the decision of this High Court in the case of United Insurance Co. v. C.R. Ramanatham, 1989 (1) ALT 190 in which the Court in paragraph 10 observed that under Order VII Rule ll(d) a plaint could be rejected only if the averments therein explicitly disclosed that the suit was barred by the provisions of any law, but not otherwise. The Court had no power to throw out the suit by rejecting the plaint at the threshold stage by examining and interpreting the provisions of law on which the suit was found. It is further observed in the said paragraph that what was explicitly mentioned in the plaint, therefore, must alone be the basis for the exercise of power under Order VII Rule 11(d), but not the conclusions that may be interpretatively drawn on an examination of the statutory provisions alluded to in the plaint. It is further observed in the said paragraph that where there was no such explicit statement in the plaint the question whether there was any legal barricade to the suit must be tried as an issue at the appropriate stage and that by this procedure alone the interests of both the parties to the suit could be safeguarded.
11. In another decision of this High Court in the case of Khaja Quthubullah v. Govt. of A.P., it was held that the question of limitation was a mixed question of law and fact which could be decided only after leading evidence on all issues.
12. In the above view of the matter, therefore, the revision petition deserves to be allowed and it is hereby allowed. The impugned order of the learned Subordinate Judge, Proddatur, in SR. No. 4809/95 dated 7-11-1995 is hereby quashed and set aside. The suit is directed to be registered and numbered and to be proceeded with in accordance with law. No costs.
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Andhra High Court
Seela Venkata Subbaiah vs Jinka Muni Swamy And Anr. on 14 October, 1997
Equivalent citations: 1997 (6) ALT 654
1. This Revision Petition is directed against the order passed by the Sub- ordinate Judge, Proddatur in SR. No. 4809/95 dated 7-11-1995, rejecting the plaint of the plaintiff/ petitioner as barred by limitation.2. An office objection was taken that the suit was prima facie barred by the law of limitation. The matter was, therefore, posted before the Court for removal of the office objection so that the plaint could be registered and regularly numbered. The learned Judge of the lower Court rejected the plaint by recording a finding that the suit was barred by limitation without even framing a preliminary issue on the question of the suit being barred by limitation. The plaint itself contained an averment to the effect that the suit was not barred by limitation and, therefore, it was not proper to decide that issue conclusively at the threshold of the inception of the suit depriving the plaintiff the opportunity of making out his case how the suit was not barred by limitation.
3. Order VII Rule 6 of C.P.C. provides that in a case where the suit is instituted after the expiration of the period prescribed by law of limitation, the plaint shall show the ground upon which exemption from such law is claimed provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint if such ground is not inconsistent with the grounds set out in the plaint.
4. In the concluding part of para 8 of the plaint, an averment with regard to the suit not having been hit by law of limitation finds place. It is pleaded in the said paragraph that the cause of action arose from the date of knowledge of fraud under Section 72 of the Contract Act read with Section 17 of the Limitation Act, at the same time from the date of demand and refusal under Article 113 of the Limitation Act and that there is no bar of limitation to the suit.
5. The above pleading in the plaint clearly shows that the requirements of Order VII Rule 6 of CPC are clearly complied with. In that view of the matter, therefore, the office objection with regard to the bar of limitation and the order passed by the Court holding that the suit was barred by limitation and directing the plaint to be returned to the plaintiff was patently devoid of jurisdiction or in other words, the learned Judge exercised the jurisdiction which was not vested in him. The entire paragraph 18 of the plaint sets out the particulars how the amount was advanced to the defendants, how it was agreed to be repaid by the defendants and how the suit claim of the plaintiff stood acknowledged from time to time. It was not necessary for the plaintiff to show in the plaint itself as to how the plaintiff proposed to prove the averments made in the plaint and through which witness and on the basis of which document, the suit claim could not be treated as having been barred by limitation. If the learned Judge had minutely gone through the contents of paragraph 8 of the plaint, he would have realised that the necessary pleadings had already been made. If, under the given facts and circumstances, there was any cause for the Court to believe that the averments were not proved and on the point of limitation itself the suit was liable to be dismissed, he should have followed the procedure prescribed by Order 14 Rule 1 of C.P.C., which provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Under Sub-Rules (4) and (5) of Rule 1 of Order 14 of CPC, it is provided as under :-
"(4) Issues are of two kinds :-
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their Pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend."
6. It is a well settled principle of law that issues relating to jurisdiction or limitation are predominantly the issues of law. If the Court believes that the whole suit could be disposed of on any such issue of law, the Court should frame a preliminary issue and decide the same. Even in such cases, it is necessary for the Court to express an opinion whether such issue proposed to be decided as preliminary issue was an issue of law alone or whether it was a mixed question of law and fact. In case of the former, the issue could well be decided as preliminary issue. But in cases where such issue is a mixed question of law and fact, the tenability of the same should be examined at the trial stage and not at the preliminary stage.
7. I fail to appreciate how this provision of law has escaped the notice of the trial Judge. In any case, the learned trial Judge was not at all justified in directing the plaint to be returned to the plaintiff by recording a finding at the stage of institution of the suit only that the suit was barred by limitation without caring to ascertain whether the pleading of the plaintiff relating to the bar of limitation was so predominant on the face of the plaint that the learned Judge did not find it necessary to examine the merits of the plaintiff's case that the suit was not barred by limitation.
8. The views expressed by this Court stand corroborated from the decision of this High Court in the case of United Insurance Co. v. C.R. Ramanatham, 1989 (1) ALT 190 in which the Court in paragraph 10 observed that under Order VII Rule ll(d) a plaint could be rejected only if the averments therein explicitly disclosed that the suit was barred by the provisions of any law, but not otherwise. The Court had no power to throw out the suit by rejecting the plaint at the threshold stage by examining and interpreting the provisions of law on which the suit was found. It is further observed in the said paragraph that what was explicitly mentioned in the plaint, therefore, must alone be the basis for the exercise of power under Order VII Rule 11(d), but not the conclusions that may be interpretatively drawn on an examination of the statutory provisions alluded to in the plaint. It is further observed in the said paragraph that where there was no such explicit statement in the plaint the question whether there was any legal barricade to the suit must be tried as an issue at the appropriate stage and that by this procedure alone the interests of both the parties to the suit could be safeguarded.
11. In another decision of this High Court in the case of Khaja Quthubullah v. Govt. of A.P., it was held that the question of limitation was a mixed question of law and fact which could be decided only after leading evidence on all issues.
12. In the above view of the matter, therefore, the revision petition deserves to be allowed and it is hereby allowed. The impugned order of the learned Subordinate Judge, Proddatur, in SR. No. 4809/95 dated 7-11-1995 is hereby quashed and set aside. The suit is directed to be registered and numbered and to be proceeded with in accordance with law. No costs.
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