THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.1051 of 2019
ORDER:
The order dated 01.02.2019 in I.A.No.272 of 2017 in O.S.No.448 of 2013 of learned II Additional District Judge, Visakhapatnam is challenged in this revision filed under Article 227 of the Constitution of India.
2. The petitioner herein is the defendant in the suit. The respondent herein is the plaintiff in the suit. The controversy is with reference to a decision about a preliminary issue. The property in dispute as described in the plaint schedule is 130 square yards of site in which there is a structure with a ground floor and first floor and all that situated in Door No.30-10-3 in Pidaparthivari Veedhi, Dabagardens, Visakhapatnam. The plaint seeks for an adjudication of a sale deed dated 10.03.2010 in document No.1330/2010 as voidable and void and to cancel the same and for costs and such other reliefs. The said sale deed was executed by plaintiff and others in favour of the defendant. However, it was sought to be cancelled by alleging various facts which include fraud and misrepresentation attributed to the defendant. The case set out in the plaint indicates that the plaintiff and his sister intended to sell ground 2 Dr. VRKS, J C.R.P.No.1051 of 2019 floor and defendant agreed to purchase ground floor but finally the documents that were got prepared by the defendant were not permitted to be scrutinized by the plaintiff and there fraud and misrepresentation were committed and while the plaintiff was thinking that it was a sale only for ground floor, the documents were obtained for the ground floor as well as first floor. It is with these and some other allegations the suit was laid. The defendant filed a very elaborate written statement and questioned the truthfulness of the case set out in the case and various questions were raised stating that there was no cause of action and the suit was bad for non-joinder of necessary parties and the suit was bad in law. It seems that after hearing both sides, the learned trial Court settled the issues for trial. 6th issue therein is "whether the suit is barred by limitation?" The trial Court was to take up the trial on all issues but it was at that time the defendant in the suit moved an application under Order XIV Rule 2(1) and 2(a) C.P.C. The prayer in that petition is extracted here:
"For the reasons stated in the accompanying affidavit the petitioner prays that it is essential in the interest of justice that the Honourable court may be pleased to decide the 3 Dr. VRKS, J C.R.P.No.1051 of 2019 issue No.6 as to "whether the suit is barred by limitation?" as preliminary issue and pass orders."
3. A brief affidavit was filed in support of the said petition stating that it is essential in the interest of justice to try that issue as a preliminary issue. A very brief counter was filed by the plaintiff stating that Order XIV Rule 2 C.P.C. cannot be pressed into service and there are no merits in this petition and such a petition is not maintainable on facts and law in the context of the relief prayed in the suit and sought for dismissal of the petition.
4. That petition was enquired into by the learned II Additional District Judge, Visakhapatnam and by the impugned order he dismissed the petition. Challenging that, the present revision is filed stating that the view of the trial Court is erroneous and contrary to law and it is purely based in surmises and conjectures and the decision of the trial Court runs contrary to judicial pronouncements and it failed to see the document in question was executed by the respondent/ plaintiff himself and he could not say that only from the subsequent events he got knowledge of the facts concerning 4 Dr. VRKS, J C.R.P.No.1051 of 2019 period of limitation. For all these reasons, the revision petitioner seeks to upset the impugned order.
5. Learned counsel for the respondent supported the impugned order stating that in the context of facts of the case the question of limitation is a mixed question of fact and law and could not be decided as a preliminary issue and the application filed before the trial Court is misconceived and no disturbance is needed to the order of the trial Court.
6. Having heard the learned counsel on both sides and having perused the material on record, the point that falls for consideration is:
"Whether the impugned order is illegal or irregular and caused miscarriage of justice requiring interference?
7. Point:
Undisputed facts are that a sale deed is in dispute in the suit. It is said to have been executed by the plaintiff in favour of the defendant. It is after that the plaintiff has come up for cancellation of such a sale deed. Apart from other grounds the grounds urged in the plaint included the allegations of fraud by defendant as against the plaintiff. They were seriously refuted 5 Dr. VRKS, J C.R.P.No.1051 of 2019 in the written statement by the defendant. Thus, one question that falls for consideration for the trial Court is as to whether there were facts that constituted misrepresentation or fraud and whether fraud or misrepresentation were played by the defendant on the plaintiff. As per Order VI Rule 4 C.P.C. these are all questions of fact. It is based on such questions of fact, the sale deed is sought to be cancelled. Questions of fact can be decided only by recording evidence and a decision on such disputed questions is possible only in the final judgment of the trial Court and not earlier to the final judgment. The issue of limitation which was framed as issue No.6 by the trial Court is to be noticed now. As per para No.9 of the impugned order, the disputed sale deed is dated 10.03.2010 and its cancellation was sought by the plaintiff and the plaint was presented on 30.10.2013. Thus, it was filed beyond three years of limitation, which is provided in Article 59 of the Limitation Act. It is this period of more than 3 years 7 months that enthused the defendant to raise the plea of limitation and that contention was framed as one of the issues by the trial Court. It is this issue, the defendant wanted to be tried as a preliminary issue. For this, he invoked Order XIV C.P.C. Order XIV Rule 1 C.P.C. says 6 Dr. VRKS, J C.R.P.No.1051 of 2019 that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other party. It further provides about kinds of issues stating that it could be issue of fact or an issue of law. Order XIV Rule 2 C.P.C. provides for a decision on a preliminary issue. Therefore, the said provision is extracted here:
"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."
8. The defendant in the suit, who is the revision petitioner, believes that since the suit was filed beyond three years of limitation it created a bar for the suit and therefore, in terms of Order XIV Rule 2(2)(b) C.P.C. it has to be decided as a 7 Dr. VRKS, J C.R.P.No.1051 of 2019 preliminary issue. By Order XIV Rule 2 C.P.C. the legislative policy is clear that it is totally left to the opinion of the trial Court either to first decide a preliminary issue or to try and decide all the issues. Further, it provides that in the event of a decision of the Court to take up one of the contentious points as a preliminary issue it could formulate such an issue and postpone framing of other issues to a later stage. What is advised by this provision is to have a decision on all the issues is the normal rule and it is only where the case falls within the parameters provided by the provision as to jurisdiction or bar for the suit the Court could take up the task of a preliminary issue and taking a decision on it. In M/s. Kalyan Complex v. Sha Sumermalji1, this Court held that Order XIV Rule 2(2) C.P.C. does not mandate that the Court must try the suit on a preliminary issue. Thus, even when a party believes that it would be shortening the litigation if a particular issue is decide as a preliminary issue, there seems to be no vested right to clinch it and it is always left to the wise and wide discretion of the trial Court to take up the task of taking up or not taking up one issue as preliminary issue. In other words by the impugned 1 2020 SCC Online AP 2413/(2021) 2 ALD 1 8 Dr. VRKS, J C.R.P.No.1051 of 2019 order, the trial Court took a decision and that being a discretion exercised does not always amenable for a revisional Court to think otherwise and substitute its discretion. Be that as it may. While counting the period of limitation from the date of execution of the sale deed to the date of filing of the plaint, though it seems a particular relief may be said to be barred by time, one has to necessarily examine whether that itself is enough to conclude that the suit is barred by limitation or whether a few more facts required scrutiny to decide about the limitation. The plaint alleged fraud and since fraud is a question of fact and since fraud is not an admitted fact in the written statement, the trial Court was bound to decide whether the disputed sale transaction and execution of sale deed suffered from fraud or misrepresentation. A decision on that alone would enable the trial Court to take up the starting point of limitation for the institution of the suit. Fraud is a matter of 'fact', the effect of fraud is a matter of 'law'. Thus, issue No.6 that was framed by the trial Court though in letter appears an issue of law of limitation, a decision on that cannot be taken by mere argument on law. If fraud is proved, the date of gaining knowledge of fraud would be relevant for consideration in 9 Dr. VRKS, J C.R.P.No.1051 of 2019 computing the period of limitation. If fraud is not proved, then what remains perhaps is mostly a matter of calculation of period of limitation. Therefore, issue No.6 is a mixed question of fact and law. Order XIV Rule 2 C.P.C. permits only a pure question of law to be decided as a preliminary issue and not a mixed question of law and fact vide Major S.S. Khanna v. Brig.F.J. Dillon2. In the context of the above principles contained in the statute and the precedent, the final decision rendered by the trial Court in the impugned order has to be supported. The contention of the learned counsel for the revision petitioner that the trial Court ought to have seen that the disputed document was executed by the plaintiff himself and therefore, question of date of knowledge and any trial on that is not required cannot be accepted since they are matters of facts to be tried. In the context of the facts and the reasons that are furnished by this Court in the earlier paragraphs, this Court has to say that a decision on limitation in the case at hand cannot be tried as a preliminary issue.
2 AIR 1964 SCC 497 (3 judges) 10 Dr. VRKS, J C.R.P.No.1051 of 2019
9. However, in the context of averments in the petition and the counter, the order passed by the trial Court makes this Court that the trial Court really went wrong in its total approach. The prayer in the petition filed before the trial Court is extracted earlier. The impugned order properly recognized that prayer and engrafted it in para No.1 of its order which is extracted below:
"Petitioner/Defendant filed the petition U/Or.XIV Rule 2 of C.P.C. praying the Court to decide issue-6 as to "Whether suit is barred by limitation" as preliminary issue."
Thus, what the defendant wanted the trial Court to do is to take a decision whether to decide issue No.6 on limitation as a preliminary issue or not as a preliminary issue. What was required on part of the trial Court was only to say whether in the context of facts and law it required to decide issue No.6 on limitation as a preliminary issue or not. Instead of doing that, in the impugned order it framed the question for consideration at para No.5, which is extracted now:
"Whether the suit is barred by limitation?"
10. Then it has decided issue No.6 on limitation itself from para Nos.10 to 15. The learned trial judge cited the precedent 11 Dr. VRKS, J C.R.P.No.1051 of 2019 brought to his notice on both sides and finally, decided stating that the suit is not barred by limitation. Thus, when he was to take a decision whether to try issue No.6 as a preliminary issue or not he has not taken a decision on that but has taken the decision on the issue of limitation itself. At para No.12 he has noticed the questions of fraud and Section 17 of the Limitation Act and Article 59 of the Limitation Act etc. Yet, he went on to decide the issue itself. That approach of the trial Court certainly causes prejudice to the parties. The impugned order does not indicate as to why the trial judge thought of deciding issue No.6 and did not say that he was proceeding to decide issue No.6 for the reasons he had already furnished. Thus, the whole endeavour of the trial Court is something that is contrary to the prayer made before him in the application filed by the defendant. It is for that reason this Court finds that it is in the best interest of justice to allow both parties to the suit to agitate their own factual and legal contentions on the issue of limitation before the trial Court during the final hearing of the suit leading to final judgment of the trial Court. All the observations made in the impugned order by the trial Court should not hinder the trial Court while deciding the suit including issue No.6 on 12 Dr. VRKS, J C.R.P.No.1051 of 2019 limitation. Thus, this Court is constrained to observe that while the approach of the trial Court is completely erroneous and incorrect, its final decision in dismissing the application has to be approved as correct and it is that decision of dismissal of the petition by the trial Court, which is challenged in this revision, and therefore, it need not be interfered with for the reasons that are already adverted to. Hence, the point is answered against the revision petitioner.
11. In the result, this Civil Revision Petition is dismissed confirming the order dated 01.02.2019 in I.A.No.272 of 2017 in O.S.No.448 of 2013 on the file of learned II Additional District Judge, Visakhapatnam. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 12.10.2022 Ivd 13 Dr. VRKS, J C.R.P.No.1051 of 2019 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.1051 of 2019 Date: 12.10.2022 Ivd