Cheepulla Seetharam vs Tapan Kumar Chowdhury
2022 Latest Caselaw 7754 AP

      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

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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

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

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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

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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

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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

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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

2020 SCC Online AP 2413/(2021) 2 ALD 1

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

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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.

AIR 1964 SCC 497 (3 judges)

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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

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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

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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

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