PATEL PREMJI JIVRAJ Vs. PATEL SHANTILAL KANJI
LAWS(GJH)-1966-2-12
HIGH COURT OF GUJARAT
Decided on February 08,1966

PATEL PREMJI JIVRAJ Appellant
VERSUS
PATEL SHANTILAL KANJI Respondents

JUDGEMENT

P.N.BHAGWATI - (1.) This Revision Application is directed against on order passed by the Civil Judge Junior Division Mandvi rejecting an application of the defendant to try the issue of limitation as a preliminary issue. Several issues were raised in the suit and one of them was whether the suit was barred by the law of limitation. The ground on which the defendant contended that the suit was barred by limitation was that the suit was a suit for malicious prosecution and inasmuch as it was filed more than one year after the termination of the prosecution of the plaintiff it was barred by limitation under Article 74 of the Indian Limitation Act 1963 Since the issue of limitation was an issue of law and if decided in favour of the defendant it would dispose of the entire suit the defendant made an application to the learned trial Judge to try it as a preliminary issue under Order 14 Rule 2 of the Code of Civil Procedure. The plaintiff resisted the application of the defendant and contended that the issue of limitation should not be tried as a preliminary issue and the argument of the plaintiff was that it was not possible to decide the issue of limitation without leading evidence and the proper course therefore would be to try this issue along with the other issues in the suit. The plaintiffs case was that the suit was not a suit for malicious prosecution governed by Article 74 but was a suit based on a cause of action which fell within the residuary Article 113 which prescribes a period of six years from the date of the accrual of the cause of action and the suit was therefore not barred by limitation. The learned trial Judge by an order dated 27th December 1965 held that it was not possible to decide without evidence whether the suit was a suit for malicious prosecution or not and it would therefore be desirable that the issue of limitation was tried along with the other issues and he accordingly dismissed the application of the defendant. The defendant thereupon preferred the present Revision Application in this Court challenging the order of learned trial Judge refusing to try the issue of limitation as a preliminary issue.
(2.) The application of the defendant for trying the issue of limitation as a preliminary issue was made under Order 14 Rule 2 and it is there fore necessary to notice what is the provision enacted in that Rule. Order 14 Rule 2 provides:- 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. It is clear on a plain reading of this rule that if two conditions are fulfilled namely that there are issues of law arising in a suit and the suit or any part thereof is capable of being disposed of on such issues of law only it is obligatory on the Court to try such issues of law as preliminary issues. There is in such case no discretion in the Court whether or not to try the issues of law as preliminary issues but the Court is bound to try them as preliminary issues. Now in the present case the issue of limitation was clearly an issue of law and indeed that was not disputed on behalf of the plaintiff. What is the appropriate period of limitation applicable in a given case would depend on the cause of action set out in the plaint and in order to determine what is the cause of action no more would be necessary than to look at the plaint. It is difficult to appreciate the observations of the learned trial Judge that it would not be possible to decide the nature of the suit without evidence. What is the nature of suit would depend on the cause of action set out in the plaint and if any evidence at all is led by the plaintiff that could only be to substantiate the cause of action laid in the plaint. The evidence to be led by the plaintiff cannot make out a new cause of action different from that set out in the plaint and it cannot therefore possibly help in determining the true nature of the cause of action formulated in the plaint. The learned trial Judge was therefore clearly in error in taking the view that the nature of the suit could not be decided without evidence. The issue of limitation was a pure issue of law which depended for its determination on the construction of the plaint and no evidence was necessary for the purpose of determination of that issue. The first condition was therefore clearly fulfilled. So far as the second condition is concerned it was not disputed on behalf of the plaintiff and indeed it could not be disputed that the issue of limitation was such that if decided in favour of the defendant it would be sufficient to dispose of the entire suit. Order 14 Rule 2 was therefore clearly applicable in the present case and by reason of Order 14 Rule 2 the learned trial Judge was bound to try the issue of limitation as a preliminary issue.
(3.) But contended the learned advocate appearing on behalf of the plaintiff even if the learned trial Judge was in error in refusing to try the issue of limitation as a preliminary issue the error was not such as would bring the case within the terms of sec. 115 of the Code of Civil Procedure so as to entitle this Court to interfere with the order of the learned trial Judge in the exercise of its revisional jurisdiction under that section. The argument on behalf of the plaintiff was that the case did not fall within any of the three clauses of sec. 115 and this Court had no jurisdiction to set aside the order of the learned trial Judge. Now so far as clauses (a) and (b) of sec. 115 are concerned there can be no doubt that they have no application in the present case. This is not a case where the learned trial Judge failed to exercise jurisdiction vested in him by law or wrongly assumed jurisdiction which he did not possess. The only question can therefore be whether the case falls within clause (c) of sec. 115. Sec. 115 clause (c) empowers the High Court to call for the record of any case which has been decided by any Court subordinate to such High Court and if such subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court can make such order in the case as it thinks fit. What is the precise scope and ambit of this clause has been considered in various decisions of the Privy Council and the Supreme Court but it is not necessary to refer to them since I find that there is a decision of Divan J. in Ambubhai v. Kapilaben (1964) V G. L. R. 1035 where the learned Judge has considered these decisions and summarized the effect of these decisions in the following words:- Under these circumstances it is clear that illegality contemplated by sec. 115(c) is a procedural illegality and so far as the material irregularity is concerned it must also be a material irregularity relating to procedure and as has been pointed by the Supreme Court in A.I.R. 1953 S.C. 23 clause (c) of sec. 115 C.P.C. cannot be invoked by the High Court if the procedure laid down by the law has been followed by the subordinate Courts without committing a breach of the procedural provision or without committing any material irregularity in those procedural provisions. It is therefore clear that sec. 115 clause (c) can be invoked only if it found that the subordinate Court has in the exercise of its jurisdiction acted in breach of some provision of law laying down the procedure for arriving at the decision or has acted with material irregularity relating to procedure and in such a case the High Court acting under that clause can interfere with the order of the subordinate Court.;


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