Jharkhand High Court

Smt. Shivpati Devi vs Bijay Nandan Singh on 25 January, 2023

                                                   1                      M.A. No. 177 of 2012


                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             M.A. No. 177 of 2012
            1.   Smt. Shivpati Devi, widow of Late Asnanandan Singh, housewife
            2.   Amit Kumar Singh, son of late Asnanandan Singh
                 Sl. Nos. 1 and 2, both by faith Hindu, by occupation Cultivation,
                 resident of Village Bibikesra Dewania, P.O. Barachatti, P.S. Barachatti,
                 District- Gaya (Bihar), and at present both resident of Village
                 Balumath, P.O. & P.S. Balumath, District- Latehar
            3.   Smt. Mamta Devi, wife of Arun Kumar Singh, daughter of Late
                 Asnanandan Singh, by faith Hindu, resident of Village Baria, P.O. Sohia,
                 P.S. Wazirganj, District- Gaya (Bihar)
            4.   Smt. Sanjukta Devi, wife of Shri Abhay Singh, daughter of Late
                 Asnanandan Singh, by faith Hindu, resident of Village Khiriyanawa
                 Sohia, P.O. Khiriyanawa Sohia, P.S. Wazirganj, District- Gaya (Bihar)
                                                                     ... Appellants
                                          -Versus-
            1.   Bijay Nandan Singh, son of Late Jagdish Singh, by faith Hindu, by
                 occupation Cultivation, resident of Village Bibikesra Dewania, P.O.
                 Barachatti, P.S. Barachatti, District- Gaya (Bihar)
            2.   General Public of Village Balumath, P.O. & P.S. Balumath, District-
                 Latehar
            3.   General Public of Village Jogiadih, P.O. & P.S. Balumath, District-
                 Latehar                                             ... Respondents
                                           -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-----

For the Appellants : Mr. Sudarshan Shrivastava, Advocate Mr. Birendra Kumar, Advocate For Respondent No.1 : Mr. Bibhash Sinha, Advocate Mr. Ankit Vishal, Advocate

-----

16/25.01.2023 Heard Mr. Sudarshan Shrivastava assisted by Mr. Birendra Kumar,

learned counsel for the appellants and Mr. Bibhash Sinha assisted by

Mr. Ankit Vishal, learned counsel for respondent no.1.

2. The present appeal has been filed against the order and judgment

dated 31.07.2012 passed by the learned Principal Sessions Judge, Latehar in

Letters of Administration (L.A.) Case No.2 of 2011.

3. In L.A. Case No.2 of 2011 filed by the appellants, it was contended

that Shri Deoki Nandan Singh (since deceased), son of Late Nishan Singh,

resident of Village Balumath, P.O. & P.S. Balumath had acquired land of

Village Balumath, P.O. & P.S. Balumath, District- Latehar described in

Schedule I of the Schedule and Khata No., Plot No. and area have been

disclosed therein. Item No.2 of the Schedule was purchased by Late Deoki

Nandan Singh in the name of his wife Smt. Lagan Basi Kuer, fully possessed

the house and residential house constructed over the portion of the land.

Deoki Nandan Singh and his wife Lagan Basi Kuer had no male child and

only one daughter namely Adhikari Devi, who was married with Jagdish

Singh. Smt. Adhikari Devi had two sons namely Asnanandan Singh (since

deceased) and Bijay Nandan Singh (respondent no.1). Late Deoki Nandan

Singh and Lagan Basi Kuer were having no male child and they had very

much love and affection from their grandsons namely son of daughter of

Smt. Adhikari Devi. Deoki Nandan Singh and his wife Lagan Basi Kuer, out

of natural love and affection and in sound mental condition jointly executed

last Will on 23.06.1980 with respect to their self acquired property,

described in Schedule in the name of Asnanandan Singh and Bijay Nandan

Singh. The last Will was executed and registered on 22.7.1980 in the office

of the Sub-Registrar, Latehar. Smt. Adhikari Devi was fully aware about the

execution of the aforesaid last Will. Testatrix, Lagan Basi Kuer died on

11.03.1980. Deoki Nandan Singh died on 05.05.1982. The original Will was

deposited by Testator and Testatrix under seal and cover in the office of

Sub-Registrar, Latehar. Smt. Adhikari Devi, the only daughter of Late

Asnanandan Singh, died in the year 1994 leaving behind her only two sons

Asnanandan Singh and Bijay Nandan Singh. Asnanandan Singh died on

08.07.2002, leaving behind his widow Smt. Shivpati Devi and one son

namely Amit Kumar Singh and two daughters namely Smt. Mamta Devi and

Sanjukta Devi (appellants herein), as legal heirs and successors who have

jointly succeeded movable and immovable properties of Late Asnanandan

Singh executed in last Will dated 23.06.1980.

4. The Probate Case No.1 of 1994 was filed by Asnanandan Singh, who

died on 08.07.2002 leaving behind the appellants herein. The appellants

have instituted L.A. No.2 of 2011 on 23.09.2011 and vide judgment dated

31.07.2012, the learned Principal Sessions Judge, Latehar while deciding the

preliminary issue, has dismissed the L.A. No.2 of 2011. Being aggrieved

with that judgment, the appellants have filed this appeal.

5. Vide order dated 03.11.2015, this appeal was admitted and L.C.R.

was called for and notices were directed to be issued upon the respondents

and pursuant thereto, respondent no.1 has appeared.

6. Mr. Sudarshan Shrivastava, learned counsel appearing for the

appellants submits that the learned court by the impugned order, has been

pleased to dismiss the L.A. No.2 of 2011 while deciding the preliminary

issue. He further submits that a petition under Order VI Rule 17 of the Code

of Civil Procedure was filed for amendment in the application and without

deciding that application, the preliminary issue was decided in absence of

any evidence led on behalf of the parties in light of Section 279 of the

Indian Succession Act observing there is no disclosure of the fact of Probate

Case No. 1 of 1994 and on the contention raised by respondent no.1 of

fraudulent or collusive, the said L.A. was dismissed. By way of referring

Section 279 of the Indian Succession Act, he submits that by the impugned

order, the provision of Section 279 has been violated. The first proviso of

Section 273 of the Indian Succession Act speaks that it will apply after

separation of Burma and Aden from India and second proviso speaks that it

will apply after separation of Pakistan from India and requirement of Section

276 and 278 comes thereafter, which has been fulfilled. He further submits

that an application under Order VI Rule 17 was filed for amendment

wherein it has been disclosed in paragraph 6 that Probate Case No.1 of

1994 was earlier filed, which was dismissed vide order dated 20.06.1996

and without deciding that application, the learned court has been pleased to

dismiss the said L.A. while deciding the preliminary issue in absence of any

cogent reason. He also submits that once the said L.A. was contested by

the parties, it was required to be converted in light of Section 295 of the

Indian Succession Act as a regular suit and contesting parties were required

to proceed, in accordance with law.

7. On the other hand, Mr. Bibhash Sinha, learned counsel appearing for

respondent no.1 submits that the learned court has rightly considered

suppression of non-disclosure of earlier movement with regard to Probate

Case No.1 of 1994. He further submits that the Will was executed in the

year 1980, whereas, the L.A. was filed in the year 2011 and it was barred

by law of limitation. By way of referring Order VII Rule 11(d) of the Code of

Civil Procedure, he submits that the plaint can be rejected. He also submits

that while deciding the preliminary issue, the learned court has rightly

dismissed the said L.A. as prima facie materials were there. According to

him, earlier Probate Case was not dismissed for default under Order VII

Rule 11(d) and once it is the case, under that rule there was procedure for

restoration in light of proviso of that rule. To buttress his argument with

regard to Order VII Rule 11, he relied upon the judgment passed by the

Hon'ble Supreme Court in C.S. Ramaswamy v. V.K. Senthil and others;

(2022 SCC OnLine SC 1330).

8. Paragraph 32 of the said judgment is quoted herein below:

"32. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order VII Rule 11 CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the Courts below have materially erred in not rejecting the plaints in exercise of powers under Order VII Rule 11(d) CPC. The respective suits have been filed after a period of 10 years from the date of execution of the registered sale deeds. It is to be noted that one suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the said suit and in the said suit, there was a specific reference to the Sale Deed dated 19.09.2005 and the said suit came to be dismissed in the year 2014 and immediately thereafter the present suits have been filed. Thus, from the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting, the plaintiffs have tried to bring the suits within the period of limitation, which otherwise are barred by limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and other decision of Raghwendra Sharan Singh (supra), and as the respective suits are barred by the law of limitation, the respective plaints are required to be rejected in exercise of powers under Order VII Rule 11 CPC."

9. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the materials on the record including

the judgment dated 31.07.2012 and finds that admittedly an application

under Order VI Rule 17 of the Code of Civil Procedure was filed by the

appellants for amendment in the application filed under Section 278 of the

Indian Succession Act. It has been specifically stated in paragraph 6 of the

said application about the Probate Case No.1 of 1994 and that was sought

to be amended and the learned court without deciding the said application,

has decided the preliminary issue. Once the disputed question of fact is

there, even while deciding the preliminary issue, the learned court was

required to provide opportunity to both the parties to adduce the evidence

and thereafter the case was required to be decided.

10. Preliminary issues can be those where no evidence is required. Thus

for instance, on the basis of reading of plaint or applicable law, if jurisdiction

of court or bar to suit is made out, court may decide such issues with sole

objective for expeditious decision. Order XIV Rule 2 of the Code of Civil

Procedure has a salutary object in mind that mandates court to pronounce

judgments on all issues subject to provisions of Order XIV Rule 2(2) of the

Code of Civil Procedure. However, in case where issues of both law and fact

arise in the same suit and court is of the opinion that case or any part

thereof may be disposed of on an issue of law only, it may try those issue(s)

first, if they relate to jurisdiction of court or a bar to suit created by any law

for time being in force. It is only in those circumstances that findings on

other issues can be deferred and that is the law on the point of preliminary

issue. When issue is a mixed issue of law and fact or issue of law depends

upon decision of fact, then such issues cannot be tried as preliminary issues

under Order XIV Rule 2 of the Code of Civil Procedure. A reference may be

made to the judgment passed by the Hon'ble Supreme Court in

Sathyanath and another v. Sarojamani; [(2022) 7 SCC 644] .

Paragraphs 11 to 22 of the said judgment are quoted herein below:

"11. A Full Bench of the Himachal Pradesh High Court in a judgment reported as Prithvi Raj Jhingta v. Gopal Singh [Prithvi Raj Jhingta v. Gopal Singh, 2006 SCC OnLine HP 25 : AIR 2007 HP 11] , held as under :

"8. The legislative mandate is very clear and unambiguous. In the light of the past experience that the old Rule 2 whereby, in the fact-situation of the trial court deciding only preliminary issues and neither trying nor deciding other issues, whenever an appeal against the judgment was filed before the Appeal Court and the Appeal Court on finding that the decision of the trial court on preliminary issues deserved to be reversed, the case per force had to be remanded to the trial court for trial on other issues. This resulted in delay in the disposal of the cases. To eliminate this delay and to ensure the expeditious disposal of the suits, both at the stage of the trial as well as at the appeal stage, the legislature decided to provide for a mechanism whereby, subject to the exception created under sub-rule (2), all issues, both of law and fact were

required to be decided together and the suit had to be disposed of as a whole, of course based upon the findings of the trial court on all the issues, both of law and fact.

9. Based upon the aforesaid reasons therefor, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under sub-rule (2) where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule (1), clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. Sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit."

12. A Single Bench of the Punjab and Haryana High Court in a judgment reported as Hardwari Lal v. Pohkar Mal [Hardwari Lal v. Pohkar Mal, 1978 SCC OnLine P&H 66 : AIR 1978 P&H 230] compared the provision of Order 14 Rule 2 prior to and after the amendment and held as under : (SCC OnLine P&H para 5) "5. A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring a discretion upon the Court that if it 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. The exercise of this discretion is further

limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law in force."

13. A Single Bench of the Patna High Court in a judgment reported as Dhirendranath Chandra v. Apurba Krishna Chandra [Dhirendranath Chandra v. Apurba Krishna Chandra, 1978 SCC OnLine Pat 207 : AIR 1979 Pat 34] held that even if the case may be disposed of on a preliminary issue, the court is bound to pronounce judgment on all the issues, subject to the provision in sub-rule (2) according to which if the case or any part thereof may be disposed of on issue of law only and if that issue relates to jurisdiction of the court or a bar to the suit created by law for the time being in force, the court may try such issue first. The High Court held as under :

"6. A plain reading of Rule 2 will show that ordinarily even if the case may be disposed of on a preliminary issue, the Court is bound to pronounce judgment on all issues. This ordinary rule is subject to only one exception which has been provided in sub-rule (2) according to which if the case or any part thereof may be disposed of on issue of law only and if that issue of law relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force the court may try such issue first. It is, therefore, clear that a departure from the ordinary rule provided in sub- rule (1) of Rule 2 can be made by the Court only in the circumstances mentioned in sub-rule (2) and even in these circumstances the Court has only a discretion that it may try an issue of law relating to the points mentioned in clauses (a) and (b) of sub-rule (2) as a preliminary issue before framing other issues. There is, however, nothing in sub-rule (2) which in my opinion makes it obligatory for the Court to try such an issue first in all cases. If, therefore, the Court is of opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in clauses (a) and (b) of sub-rule (2) as a preliminary issue before taking up other issues."

14. A Single Bench of the Bombay High Court in a judgment reported as Usha Sales Ltd. v. Malcolm Gomes [Usha Sales Ltd. v. Malcolm Gomes, 1983 SCC OnLine Bom 122 : AIR 1984 Bom 60] held that after the amendment, a duty is cast upon the court that it must proceed to hear all the issues and pronounce the judgment on the same, except that the court may try an issue relating to the jurisdiction of the court or to the legal bar to the suit as a preliminary issue. It was held to be more in the nature of discretion rather than a duty. It was held as under : (SCC Online Bom paras 11-12) "11. From the above it is easily seen that there is an obligation cast upon the court that even though a case may be disposed of on a preliminary issue the courts shall subject to the provision of sub-rule (2) pronounce judgment on all issues. In other words, the obligation to decide a question of law as a preliminary issue if that

decision disposes of the case or part of the case is no longer, there. Similarly, the discretion to decide any other issue as a preliminary issue has been taken away totally from the Court. On the other hand, a duty is cast upon the Court that it must proceed to hear all the issues and pronounce judgment on the same.

12. There is, however, a small exception carved out to the above provision. The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try any issue despite the provision contained in sub-rule (2) of Rule 2 of Order 14 of the Code. The words "it may try" are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue."

15. A Single Bench of the Jammu and Kashmir High Court in a judgment reported as Aruna Kumari v. Ajay Kumar [Aruna Kumari v. Ajay Kumar, 1989 SCC OnLine J&K 23 : AIR 1991 J&K 1] held as under : (SCC OnLine J&K para 4) "4. ... Admittedly both the parties have to lead evidence regarding both the issues. In case Issue 2 is allowed to be treated as preliminary the parties will certainly lead evidence in the case and instead of disposing of the case expeditiously it will prolong the matter and frustrate the very basis of law contained in Order 14 Rule 2, Civil Procedure Code. The evidence to be led by both the parties will almost cover both the issues and it cannot, therefore, be said that by allowing Issue 2 to be treated as preliminary the trial of the case would be expedited. When we review the whole law on the point it becomes clear that where issue of jurisdiction is a mixed question of law and fact requiring evidence to be recorded by both the sides same cannot be treated as a preliminary issue."

16. The matter has also been examined by this Court in a judgment reported as Ramesh B. Desai v. Bipin Vadilal Mehta [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] wherein it was held as under : (SCC p. 650, para 13) "13. Sub-rule (2) of Order 14 Rule 2CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the 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. The provisions of this Rule came up for consideration before this Court in S.S. Khanna v. F.J. Dillon [S.S.

Khanna v. F.J. Dillon, AIR 1964 SC 497] and it was held as under :

'* * *' Though there has been a slight amendment in the language of Order 14 Rule 2CPC by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds

good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue."

17.This Court in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] held that the principles enunciated in S.S. Khanna [S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497] still hold good and the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue depends upon the question of fact, it cannot be tried as a preliminary issue. The said finding arises from the provision of Order 14 Rule 2 clauses (a) and (b). After the amendment, discretion has been given to the court by the expression "may" used in sub-rule (2) to try the issue relating to the jurisdiction of the court i.e. territorial and pecuniary jurisdiction, or a bar to the suit created by any law for the time being in force i.e. the bar to file a suit before the civil court such as under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and numerous other laws particularly relating to land reforms. Hence, if Order 14 Rule 2 is read along with Order 12 Rule 5, the court is expected to decide all the issues together unless the bar of jurisdiction of the court or bar to the suit in terms of sub-rule (2) clauses (a) and (b) arises. The intention to substitute Rule 2 is the speedy disposal of the lis on a question which oust either the jurisdiction of the court or bars the plaintiff to sue before the civil court.

18. We may state that the First Schedule appended to the Code contains the procedure to be applied in respect of the matters coming for adjudication before the civil court. Such procedure is handmaid of justice as laid down by the Constitution Bench judgment of this Court reported as Amarjit Singh Kalra v. Pramod Gupta [Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272] wherein it was observed as under : (SCC p. 300, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."

19. A three-Judge Bench in a subsequent judgment reported as Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] held that all rules of procedure are handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent but the object of prescribing procedure is to advance the cause of justice. The Court held as under :

"28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to

advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774] are pertinent :

'5. ... The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

6. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to actex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive.'

29. In State of Punjab v. Shamlal Murari [State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that : (SCC p. 720) 'Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.' In Ghanshyam Dass v. Dominion of India [Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle."

20. This Court in Sugandhi v. P. Rajkumar [Sugandhi v. P. Rajkumar, (2020) 10 SCC 706 : (2021) 1 SCC (Civ) 116] held that if the procedural violation does not seriously cause prejudice to the adversary party, the courts must lean towards doing substantial justice rather than relying upon procedural and technical violations. It is not to be forgotten that litigation is nothing but a journey towards truth which is the foundation of justice and the Court is required to take appropriate steps to thrash out the underlying truth in every dispute. It was held as under : (SCC pp. 708-09, para 9) "9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing

substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3)."

21. The provisions of Order 14 Rule 2 are part of the procedural law, but the fact remains that such procedural law had been enacted to ensure expeditious disposal of the lis and in the event of setting aside of findings on preliminary issue, the possibility of remand can be avoided, as was the language prior to the unamended Order 14 Rule 2. If the issue is a mixed issue of law and fact, or issue of law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other words, preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the court or the bar to the suit is made out, the court may decide such issues with the sole objective for the expeditious decision. Thus, if the court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext.

22. In fact, in a judgment reported as A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam [A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 :

"39. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants."

11. Admittedly, an application under Order VI Rule 17 of the Code of Civil

Procedure was filed and without deciding that, the said L.A. was decided on

preliminary issue and once the said L.A. Case was contested, the provision

of Section 295 of the Indian Succession Act was required to be taken care

of. Even when deciding the preliminary issue, if certain facts are disputed,

the parties are required to be called upon to adduce the evidence to make

out the case. Admittedly, the learned court without following that procedure

has passed the impugned order.

12. On the point of limitation, as argued by Mr. Bibhash Sinha, learned

counsel for the respondents, there is no finding to that effect in the order. It

has been disclosed that at the time of execution of the Will, appellant nos.

2, 3 and 4 were minor. In the case relied by Mr. Bibhash Sinha, learned