Rajasthan High Court - Jodhpur
Shreemat Pandey vs . M/S. G.B. Jain & Sons & Ors. on 28 October, 2015
Author: P.K. Lohra
Bench: P.K. Lohra
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: ORDER::
S.B. CIVIL WRIT PETITION No.9214/2014
Shreemat Pandey V/s. M/s. G.B. Jain & Sons & Ors.
Date of Order :::: 28th October 2015
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. M.S. Singhvi, Sr. Advocate with Mr. Akhilesh Rajpurohit for
petitioner-defendant No.3
Mr. M.R. Singhvi, Sr. Advocate with Mr. Bhavit Sharma for
respondent No.1-Plaintiff.
Mr. V.D. Dadhich for Mr. N.M. Lodha Sr. Advocate and Advocate
General, for the State.
Mr. Anurag Shukla for respondent No.3, Municipal Council Udaipur.
BY THE COURT:
Petitioner-defendant by this petition under Articles 226 & 227 of the Constitution seeks to challenge order impugned dated 29th May, 2014 (Annex.11) passed by Additional District Judge No.5, Udaipur (for short, 'learned Court below'). By order Annex.11, learned Court below has declined joint prayer of the petitioner- defendant and respondent-State of Rajasthan for deciding Issues No.25, 26 and 31 as preliminary issues by rejecting their applications under Order XIV Rule 2 read with Section 151 CPC.
Succinctly stated the facts of the case are that first respondent-plaintiff filed a suit for damages against the State of 2 Rajasthan, Municipal Council Udaipur and the petitioner quantifying total amount of damages to the tune of Rs.1,76,33,500/- (Rupees One Crore Seventy Six Lacs Thirty-Three Thousand Five Hundred) inter alia on the ground that the petitioner and other defendants dismantled booking windows and damaged the business of the respondent at Sukhadia Circle, Udaipur. It is further averred in the plaint that petitioner and other defendants have closed the business of the firm in gross violation of lease-deed dated 4th of May, 1992 issued by Municipal Council Udaipur and in defiance of stay order dated 11th of June, 1996 passed by this Court. The petitioner submitted his written statement incorporating many objections. Besides that, the other defendants also filed written statements reiterating some of the objections incorporated in the written statements of the petitioner. Thereafter petitioner filed subsequent pleadings to the written statement of the petitioner on 10th of May, 2002. The learned Court below on the basis of pleadings of the rival parties settled in all 32 issues on 28th of August, 2003. The proceedings in the suit progressed at snail's pace inasmuch as on various occasions numerous applications were submitted by the rival parties. Be that as it may, the first defendant State of Rajasthan laid an application under Order VI Rule 17 CPC for amending the written statements and same is allowed by the learned Court below by its order dated 9th of January, 2014. The amendment application of the first defendant, State of Rajasthan, was allowed in the suit when proceedings in the suit were at the stage of evidence of plaintiff and at that point of time an application under Order XIV Rule 2 read with 3 Section 151 CPC was also pending which was laid at the behest of the petitioner besides application of the State of Rajasthan with identical prayer. In his application, petitioner has prayed for deciding Issues No.25, 26 and 31 as preliminary issues.
Precisely in the application under Order XIV Rule 2 CPC, the petitioner has set out a ground that all these three issues goes to the root of the matter and therefore can be decided as preliminary issues as these issues relate to a bar to the suit created by law for the time being in force. For substantiating his cause in the application for deciding these issues as preliminary issues, the petitioner has laid emphasis on some of the vital facts viz that the suit is based on breach of contract and the so-called contract was between the respondent-plaintiff and the Municipal Council Udaipur. Further elaborating on this issue, it is urged in the application that as there was no privity of contract between respondent-plaintiff and the present petitioner as well as defendant State of Rajasthan both the of them are having no casual connection with alleged contract and that being so no question of breach of contract vis-à-vis the petitioner and the respondent-defendant No.1 has arisen. On the part of the District Administration it is also pleaded that appropriate actions were taken in compliance of order passed by the competent authority under Section 133 Cr.P.C. The question relating to non-serving of notice under Section 271 of the Rajasthan Municipalities Act, 1959 (for short, 'Act of 1959') against the Municipal Council Udaipur and the notice under Section 80 CPC to the petitioner as well as State of Rajasthan is also incorporated as a ground for persuading the 4 learned Court below for deciding all these issues as preliminary issues.
Learned Court below after hearing the arguments, by the order impugned, rejected the application, observing that all these issues are founded on mixed questions of law and fact and therefore, cannot be decided as preliminary issues.
Learned counsel for the petitioner submits that the learned Court below has committed serious jurisdictional error in not deciding Issues No.25, 26 and 31 as preliminary issues without properly constructing averments of the plaint. Learned counsel would contend that order impugned suffers from vice of an error apparent on the face of record inasmuch as learned Court below has mis-construed all these three issues as mixed question of fact and law whereas, on the face of it, all these issues are purely based on question of law. Romping in the provisions of Order XIV Rule 2 CPC, learned counsel has urged that even assuming that these three issues are based on mixed question of law and fact then too merely because some evidence may be required to be taken on the issues cannot be a valid ground for refusal to try these issues as preliminary issues. He, therefore, submits that in substance misconstruction of rigour of Order XIV Rule 2 CPC by learned Court below has rendered the impugned order vulnerable. Learned counsel contends that a bare perusal of Issue No.26 makes it amply clear that for deciding the same no evidence is required and the learned Court below ought to have considered the matter objectively inasmuch as question of limitation in every case cannot be construed 5 as a mixed question of fact and law in the abstract sense. Learned counsel, therefore, submits that matter, in this regard, required scrutiny on the touchstone of averments in the plaint and disclosure of cause of action which the learned Court below has completely eschewed in the impugned order. Learned counsel has also argued that question, relating to notice under Section 271(2) of the Act of 1959, was again a pure question of law vis-a-vis respondent Municipal Council, Udaipur requiring adjudication as preliminary issue has completely lost sight of the learned Court below is good enough to vitiate the impugned order. Learned counsel has further submitted that learned Court below, while declining prayer of the petitioner for deciding Issue No.26 as preliminary issue, completely misread and misconstrued the plaint by treating it to be a suit for damages on the ground of breach of contract as well as on tort, whereas the fact remains that entire edifice of the suit/claim is based on breach of contract. Joining issue with the respondent-plaintiff on delay, learned counsel submits that delay in the suit proceedings cannot be attributed to the petitioner and therefore, the same cannot be a valid cause for non-suiting the petitioner as urged by the learned counsel for the respondent. In support of his contentions, learned counsel for the petitioner has placed reliance on following legal precedents:
Hari Gokal Jewellers V/s. Satish Kappor 2006 (88) DRJ 837 (Delhi High Court) Dinesh Parmar & Anr. V/s. Smt. Usha Sharma & anr. 2015 (3) WLN 441 (Raj.) 6 Amir Chand V/s. Harji Ram [1986 RLR 985] Suresh Yadav (Dr.) V/s. Sanjay Kumar Sharma & Ors. [2006 (2) DNJ 892 (Raj.) Ladi V/s. Badri Narayan [2001 DNJ (Raj.) 735] Babulal V/s. Kanhaiya Lal - SBCWP No.5158/2014 decided on 20.11.2014 Foreshore Corporation Housing Society Ltd. V/s. Praveen D Desai [(2015) 6 SCC 412] Per contra, learned counsel for the respondent submits that Order XIV Rule 2 CPC has undergone sea through change inasmuch as earlier legislature has employed the word "shall", which has been replaced by "may" thereby now it is within the sole discretion of the court to decide even an issue of law as a preliminary issue or to decide it along with other issues. Elaborating his submissions, in this behalf, learned counsel has argued that the learned Court below having exercise its discretion to decide these three issues along with other issues, the said order is not liable to be tinkered with in exercise of supervisory jurisdiction of this Court.
Learned counsel submits that plea of limitation cannot be decided as an abstract principle of law divorced of facts in every case, inasmuch as in every case, the starting point of limitation has to be ascertained which is entirely a question of fact. He, therefore, submits that plea of limitation is mixed question of law and fact.
While joining issue with the petitioner on the issue relating to notice under Section 271(2) of the Act of 1959, learned counsel would 7 contend that the provision aforesaid is not a provision of public policy but for benefit of municipalities or persons mentioned therein, and therefore, Municipality can very well waive such objection. Learned counsel further submits that if the objection, regarding the notice under Section 271(2) of the Act of 1959, is not raised by the Municipality, a co-defendant like the petitioner cannot be allowed to raise such an objection. Strengthening his submissions, in this behalf, learned counsel has urged that non-mentioning of such an objection in the written statement of Municipality pre-supposes that it has been waived by the Municipality and as such order impugned cannot be faulted. Learned counsel has also argued that scope of judicial review under Article 227 of the Constitution is very much limited and the same is not akin to appellate jurisdiction and, therefore, a discretionary order passed by the learned Court below is not liable to be interfered with while exercising judicial review under supervisory jurisdiction having very limited scope. Lastly, learned counsel has urged that the suit filed by the petitioner is pending before the learned Court below since 2001, and therefore, necessary directions be issued for its expeditious disposal. In support of his contentions, learned counsel for the respondent has placed reliance on following legal precedents:
Suresh Chandra & Dhan Raj V/s. Shri Hanuman Prasad [RLW 2006 (4) Raj 3090] Mukesh Kumar Sancheti V/s. Civil Judge (J.D.) & Ors - SBCWP No.1884/2010 decided on 26.03.2010.8
UIT Jodhpur V/s. Kailash Chand & Ors. - S.B. Civil Revision Petition No.225/2013 decided on 13.11.2013.
Municipal Corporation Indore V/s. Sri Niyamatullii S/o Matiulla [AIR 1971 SC 97] Sunni Central Waqf V/s. Gopal Singh [AIR 1991 (All) 89 (FB)].
Prithvi Raj Jhingta V/s. Gopal Singh [AIR 2007 (HP) 11 (FB)].
The Manager, Bettiah Estate V/s. Sri Bhagwati Saran Singh [AIR 1993 (All) 2 (DB)].
M/s. Dullar Enterprises V/s. Bhagwan & Anr. [AIR 2001 (Raj.) 44] Lufthansa German Airlines V/s. Vij Sales Corp. [(1998) 8 SCC 623] Ramesh B. Desai & Ors. V/s. Bipin Badilal [(2006) 5 SCC 638].
Usha Sales Ltd. V/s. Malcolm Gomes & Ors.[AIR 1984 (Bom) 60].
Save The Children Fund (UK) V/s. Dr. Suresh Chandra Sharma & Ors. - SBCWP No.6880/2011 decided on 11.09.2012.
Jagir Singh V/s. Ranbir Singh & Anr. [AIR 1979 SC 381] Radhey Shyam & Anr. V/s. Chhabi Nath & Ors. [(2015) 5 SCC 423 (Larger Bench)] 9 Learned counsel for the respondent-State and Municipal Council, Udaipur have also echoed the arguments raised by learned counsel for the petitioner to assail the impugned order.
I have heard learned counsel for the parties, perused the impugned order and thoroughly scanned the entire material available on record.
Rejection of petitioner-defendant's application under Order XIV Rule 2 CPC for deciding Issues No.25, 26 and 31 as preliminary issues is the genesis of this litigation, therefore, for ascertaining legislative intent, it is necessary to examine the relevant provision. The complete text of Rule 2 of Order XIV CPC is reproduced as under:
"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."
A bare perusal of sub-rule (1) of Rule 2 of Order XIV CPC makes it amply clear that it ordains pronouncement of judgment on all the issues by a court with a non-obstante clause i.e. even if case may be disposed of on preliminary issue, however, subject to 10 the provisions of sub-rule (2) of Rule 2 of Order XIV CPC. Before amendment Act 104 of 1976 in CPC, under sub-rule (2) of Rule 2 of Order 14 CPC, legislature has employed the word "shall" dispose of an issue of law as preliminary issue if it relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. After the amendment of 1976 w.e.f. 1st of February 1977, word "shall" is replaced by word "may" to leave it at the discretion of the court so as to try such issue as preliminary issue. The very amendment, more particularly, replacing the word "shall" by "may" pre-supposes that legislature has thought it proper to confer wide discretion on court to decide an issue of law as a preliminary issue or to decide the same along with other issues while pronouncing the judgment. Be that as it may, even the amended provision as envisaged under sub-rule (2) of Rule 2 of Order XIV CPC has not circumscribed or curtailed the jurisdiction of the court to try an issue of law only as a preliminary issue depending on facts of an individual case. In the present case, the petitioner-defendant has made endeavour to call upon the learned Court below to decide Issues No.25, 26 and 31 as preliminary issues and the said prayer of the petitioner is resisted by the respondent-plaintiff and eventually effort of the petitioner foiled resulting in culmination of the impugned order.
With a view to analyse the afflictions of the petitioner in entirety, it is very much desirable to first examine the pleadings of the rival parties.
Upon threadbare examination of the averments of the plaint, prima facie, the edifice of the suit is breach of contract as well 11 as tort. True it is that for claiming damages, the respondent-plaintiff has attributed breach of contract by the Municipal Council, Udaipur but, at the same time, many paragraphs of the plaint are dilating on a civil wrong which is independent of contract with direct attribution to the district administration i.e. State of Rajasthan and the petitioner. The respondent-plaintiff has also made an affirmative attempt to castigate all the defendants including the petitioner as joint tort- feasors or wrong doers to fasten liability of the damages jointly and severely against all of them. There is a specific averment in the plaint that one of the partner of the plaintiff-respondent firm was illegally detained, defamed and forced to sign some blank papers and damages are also claimed under that head further, prima facie, strengthen the case of the respondent-plaintiff that it is not based on simpliciter breach of contract but it is also edificed on the law of tort.
The fact pertaining to serving of notice under Section 80 CPC read with Section 271 of the Act of 1959 is also pleaded in the plaint. The petitioner has refuted all the averments contained in the plaint and completely repudiated the claim of the respondent-plaintiff. As regards notice under Section 80 CPC, in the written statement, petitioner has completely denied the fact of receiving the notice and thereby sought dismissal of the suit against him on this count alone. On many other contentious issues, petitioner has submitted in the written statement that he has not acted unlawfully against respondent-plaintiff and allegations, in this behalf, are false and fabricated. Even the petitioner has made an attempt to plead in the written statement that he has not done anything in official capacity 12 which can be said to be detrimental to the interest of the respondent- plaintiff. As per the petitioner all said and done he has discharged his official duties as District Collector, Udaipur, and therefore, no mala fide can be attributed to him.
Although learned Court below has framed 32 issues, but the crucial issues which are material for the purpose of present petition are Issues No.25, 26 and 31, therefore, all these issues are reproduced in vernacular as infra:
25. आय व द क न ट स ध र -80 वयवह र पक य सटहत क अनस र ववधधवत नह ह न स व द ननरसत ककय ज न क य गय ह?
--पनतव द सखय -1
26. आय व द क व द पररस$म अधधननयम 1963 क प वध न& क अनस र अवधध ब हर ह इस क रण व द क व द ननरसत ककय ज न य गय ह*?
--पनतव द सखय -1 व 3
31. आय व द न पनतव द सखय -3 क ध र 80 ज .द . क न ट स नह टदय एतद: व द क व द पनतव द सखय -3 क ववरद इस आध र पर ख ररज ह न य गय ह*?
--पनतव द सखय -3 So far as Issues No.25 and 31 are concerned both these issues are related with notice under Section 80 CPC. Both these issues are settled on the basis of pleadings of the petitioner, first respondent, and State of Rajasthan. Considering their written statements both of them are denied receiving notice under Section 80 CPC.
In Hari Gokal Jewellers (supra), Single Judge of Delhi High Court, while considering application under Order VII Rule 11 13 CPC, proceeded to reject the plaint precisely on the ground that averments made in the plaint to prove any fiduciary or other relations between him and the defendant were found to be vague and that apart the facts stated in the legal notice issued to defendant are not reiterated in the plaint. Taking into account the fact situation, in the instant case, the aforesaid judgment cannot render any assistance to the petitioner.
In Dinesh Parmar & Anr. (supra), this Court has noticed, prima facie, from the averments made in the plaint that suit is barred by limitation, and therefore, it has proceeded to depart from the general rule that limitation is a mixed question of law and fact. By relying on clause (d) of Rule 11 of Order VII CPC, the Court has held that mere clever drafting of the plaint cannot bring a suit within limitation which is ex-facie barred by limitation upon meaningful construction of the averments made in the plaint. Therefore, in that background, the Court has thought it proper to reject the plaint upon examining the statements in the plaint to be barred by limitation. This sort of situation is prima facie not visible in the instant case.
In Amir Chand (supra), this Court, while examining the provisions of Order XIV Rule 2(2) CPC, upset the impugned order of learned trial Court for not deciding an issue, which is covered under clause (b) of sub-rule (2) of Rule 2 of Order XIV CPC i.e. a bar to the suit created by any law for the time being in force. In that case, defendant has pleaded that suit is barred under Section 46 of the Administration of Evacuee Property Act, 1950 and therefore, in that background the Court has held that the learned trial Court ought to 14 have tried this issue as a preliminary issue. The fact situation, in the instant case, is quite different inasmuch as there is no plea by any of the defendants including the petitioner that suit of the respondent- plaintiff is barred by any law for the time being in force.
In Suresh Yadav (Dr.) (supra), reason assigned by the learned trial Court for not deciding Issue No.4 relating to court fee as preliminary issue did not find favour from this Court precisely for the reason that the learned trial Court has declined the prayer on a jejune ground that evidence in the matter has commenced. In the instant case, the learned Court below has assigned reasons for exercising its discretion in declining the prayer of the petitioner. Therefore, this judgment too cannot render any assistance to the cause of the petitioner.
The Division Bench of this Court in Ladi (supra) examined the rigour of clause (b) of sub-rule (2) of Rule 2 of Order XIV CPC in conjunction with clause 58 of Part III of the Schedule of the Limitation Act, 1963 as well as Family Courts Act, 1984. In backdrop of facts of the case, the Court found that suit filed by an incumbent after three years seeking declaration of his marriage which according to him stood dissolved on 6th of May, 1995 according to rites and customs of Meena community on 1st of October, 1999 relates to a very vital issue with respect to limitation and thereby while remanding the matter back directions were issued to the Family Court to decide the said issue as preliminary issue. From the averments made in the plaint per-se it is not possible to infer prima faice that the suit is barred by limitation, and therefore, in 15 my considered opinion, this judgment too cannot render any assistance to the petitioner.
In Babulal's case rendered by Single Judge of this Court has found that the issue relating to limitation was not a mixed question of law and fact, and therefore, order of the trial Court is set aside with a direction to frame issue relating to limitation and decide the same as a preliminary issue. In the instant case, if the impugned order is examined on touchstone of averments made in the plaint then it would, ipso facto, reveal that the respondent-plaintiff has made an affirmative attempt to plead requisite facts for showing cause of action accrued to it on 29th of May, 1998 and the paragraphs showing cause of action also contains material particulars about the accrual of cause of action, therefore, prima faice, in my considered opinion, this judgment too cannot come to the aid of the petitioner and is factually distinguishable.
The judgment in the case of Foreshore Cooperative Housing Society (supra) is essentially relates to Section 9A [as amended by CPC (Maharashtra Amendment) Act, 1977, which expressly mandates to decide preliminary issue of jurisdiction prior to proceeding with the suit or passing any interim order. Hon'ble Apex Court, while considering it to be a mandatory provision and exception to Order XIV Rule 2 CPC, has held that any issue relating to jurisdiction is to be decided as a preliminary issue before proceeding with the suit and passing any interim order. As there is no pari materia provision in the State of Rajasthan akin to Section 9A, the discretion of the Court trying a suit is wide open and if court has 16 exercised its discretion, it is rather difficult to construe the same as irrational. One more redeeming fact is that Issues No.25 and 31 are not related with jurisdiction of the learned Court below, therefore, in that situation, this judgment too is of no avail and consequence to the petitioner.
Respondent-plaintiff has vociferously canvassed that after Amendment Act of 104 of 1996, it is not obligatory for the Court to decide any issue as a preliminary issue under Order XIV Rule 2 CPC.
A Full Bench judgment in Sunni Central Waqf Board (Supra) by the Allahabad High Court essentially deals with that aspect of the matter. The Full Bench has held:
"The word "shall" used in old O.14, R.2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue."
In Prithvi Raj Jhingta (supra), yet another Full Bench Judgment of Himachal Pradesh High Court the same principle is reiterated and held:
"Based upon the aforesaid reasons therefore, 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 17 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."
In Ramesh B. Desai & Ors. (supra), Hon'ble Apex Court while examining Order XIV Rule 2 CPC dilated on the questions that may be determined as preliminary questions. The Court made it clear that issues based on mixed questions of fact and law cannot be decided as preliminary issue. While considering plea of limitation, the Court opined in clear and unequivocal terms that it is a mixed question of law and fact. The Court held:
"Sub-rule (2) of Order 14 Rule 2 CPC 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 Major S.S. Khanna v. Brig. F.J. Dillon and it was held as under: (SCR p.421) "Under Order 14 Rule 2, Code of Civil Procedure 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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as 18 preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lop-sided trial of the suit."
Though there has been a slight amendment in the language of Order 14 Rule 2 CPC 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.
A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7I Rule 11
(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust it was held :(SCC p.661, para 8) "After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time." This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) CPC."
19
The question relating to a valid notice under Section 271 of the Act of 1959 has been aptly dealt with in Suresh Chandra & Dhan Raj (supra), Mukesh Kumar Sancheti (supra) and UIT, Jodhpur (supra). In all these judgments, this Court held in clear and unequivocal terms that procedure of giving notice under Section 271 of the Act of 1959 is mere procedural and same does not go to the root of the jurisdiction and requirement of notice on expiry of a particular period has no jurisdictional effect. The Court has further held that requirement is capable of being waived by defendant and on such waiver, the court gets jurisdiction to entertain and try the suit. It may be noticed here that in the instant case there is no objection as such raised by the respondent Municipal Corporation Udaipur in the written statement. Therefore, ratio decidendi of these judgments clearly clinches the issue.
Hon'ble Apex Court in Municipal Corporation Indore (supra) has also considered that if the Municipal Corporation has not taken a defence of limitation such a defence is not liable to be entertained.
Learned Single Judge of this Court in Save the Children Fund (UK) (supra) has declined to interfere with the discretionary order of the trial Court under Order XIV Rule 2 CPC whereby it has rejected the prayer of the defendant to try certain issues as preliminary issues by considering these issues as mixed question of law and fact. The Court held:
Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court, it appears that the trial 20 court has rejected the application of the petitioner filed under Order XIV Rule 2 of CPC on the ground that the issues sought to be tried as preliminary issues were mixed questions of law and facts and could not be decided as preliminary issues. It is needless to say that the impugned order passed by the trial court is discretionary in nature and the learned counsel Mr. Mahendra Singh for the petitioner has failed to point out any gross illegality or perversity in the said order passed by the trial court. It is also axiomatic that the jurisdiction of the High Court under Article 227 of the Constitution of India is very limited and normally the High Court should not interfere with the discretionary orders passed by the trial court unless the same are exfacie perverse or illegal or causing gross injustice to any party.
The framework of Issues No.25 and 31 clearly goes to show that burden is on the petitioner and the first respondent-
defendant to prove that notice under Section 80 CPC was not given to them before institution of the suit. If the impugned order is examined in that light then it would, ipso facto, reveal that the learned Court below has taken note of the fact that respondent-
plaintiff has specifically pleaded in the plaint that before institution of the suit, it has served notice under Section 80 CPC on the petitioner as well as on the respondent State of Rajasthan. That being the position it is rather not possible to fathom that both these issues are issues of law only requiring no evidence for adjudication. In this view of the matter, the impugned order to the extent it has declined prayer of the petitioner to try both these issues as preliminary issues cannot be categorised as infirm or dehors the mandate of Order XIV Rule 2 CPC.
Now switching on to Issue No.26 concerning the bar of limitation suffice it to observe that in common parlance an issue that 21 is neither a pure question of fact, nor pure question of law can be termed as mixed question of law and fact. The general rule is that limitation is a mixed question of law and fact but the same cannot be applied in abstract sense and at times the departure from the general rule can be resorted to while exercising powers under clause
(d) of Rule 11 of Order VII CPC where from a bare perusal of averments of the plaint it is apparent that suit is barred by limitation.
Upon examining the averments of the plaint and meaningful construction of the pleadings in conjunction with the written statement, more particularly, the averments contained in paras 49, 51, 54 and some of the other succeeding paras as well as para 92 where the respondent-plaintiff has disclosed cause of action and written statement of these paragraphs by the petitioner, there remains no quarrel that issue relating to limitation is contentious and its adjudication is dependent on the evidence tendered by the rival parties. That being the position, I am afraid, departure from the general rule to construe issue of limitation as issue of mixed question of law and fact is unsafe, and therefore, the finding and conclusion of the learned Court below in the impugned order, in this behalf, cannot be categorised as perverse or infirm within the limited scope of judicial review under Article 227 of the Constitution of India. It may also be pertinent to note here that although suit has progressed at snail's pace but then presently it is posted for evidence of the plaintiff, and therefore, the discretion exercised by the learned Court below to refrain from resorting to sub-rule (2) of Rule 2 of Order XIV CPC for deciding Issue No.26 as a preliminary issue obviously 22 cannot be faulted and the discretion exercised by the learned Court below by applying rigor of sub-rule (1) of Rule 2 of Order XIV CPC appears to be a just decision and not liable to be tinkered with by exercising supervisory jurisdiction under Article 227 of the Constitution.
Hon'ble Apex Court in Radhey Shyam & Anr. (supra) has dealt with jurisdiction of this Court under Article 227 and while relying on various earlier decisions including the decision in Shalini Shyam Shetty V/s. Rajendra Shankar Patil [(2010) 8 SCC 329] by quoting some of the paragraphs of the judgment as under:
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the 23 High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time-honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
(emphasis supplied)"
While over-ruling the judgment in Surya Dev Rai V/s.
Ram Chander Rai [(2003) 6 SCC 675], the Court further held:
"29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled."
The parties have joined issue on slow progress of the case by accusing each other for delay by way of indulging in blame- game. Upon perusal of the order-sheets produced before me by learned counsel for the petitioner, I am at loss to say that no motive/inaction can be attributed to the petitioner for slow progress in the instant case. A civil suit, which meanders through a labyrinth of procedures and at times climbs the judicial pyramid obviously takes a long gestation period. As a matter of fact there are various factors which are the cause of the delay in disposal of the suit putting a 24 serious question mark on our adjudicatory process under the civil jurisprudence. This sort of situation has forced the litigants to resort to an alternative disputes resolution forum like arbitration etc., in order to save time and expense and to escape the agony of a protracted trial. From a bare perusal of proceedings of the suit, respondent-plaintiff cannot be salvaged from its responsibility for delay in disposal of the suit. Be that as it may, the fact remains that this Court cannot shut its eyes and shark from its solemn duty to reinforce public faith in our civil justice delivery system by invoking the doctrine of delay defeats equity and consequently a direction is required to be issued to the learned Court below for expediting trial of the suit.
Before parting it may be observed that the learned Court below is expected to decide the matter on the basis of evidence and materials available on record dispassionately strictly in accordance with law uninfluenced by the observations made in the impugned order and by this Court to ensure that no prejudice be caused to either of the parties.
The upshot of above discussion is that I am not persuaded to interfere with the impugned order and consequently petition merits dismissal and the same is, hereby, rejected with the observations made hereinabove.
(P.K. LOHRA), J.
a.asopa/-