Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Learned senior counsel has emphatically put forth that the learned single Judge as well as the Division Bench has committed grave error by taking recourse to the principle of acquisition of knowledge by the plaintiff and other aspects. It H is absolutely limpid that if there is a transfer by previous SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M. SANKUNTALA (D) TR. LRS. [DIPAK MISRA, J.] manager for a valuable consideration then only the limitation of twelve years or any other article would come into the play. As far as Article 59 is concerned, it is urged by him that the said Article is not applicable to the present case. Article 59 reads as follows: – Description of Period of Time from which suit limitation period begins to run 59 To cancel or set Three When the facts entitling aside an years the plaintiff to have the instrument or instrument or decree decree or for cancelled or set aside the rescission . or the contract of a contract rescinded first become known to him c
13. The learned counsel for the respondent would contend that the plaintiff is not a trust as unperstood within the parameters of Section 10 of the Limitation Act and, therefore, the learned single Judge has ri~htly opined that Article 59 would be applicable. The learned counsel further submits that assuming Article 59 is not attracted and any other Article contained in Chapter VIII would be applicable and suit would be barred by limitation inasmuch as it was filed after nineteen years.
14. The core question that emerges for consideration is whether an issue of limitation could at all have been taken up as a preliminary issue.
15. In Ramrameshwari Devi and others v. Nirma/a Devi and others1, whi113 dealing with Order 14, Rule 2, observed that sub-rule (2) of Order 14 refers to the discretion given to the court where the court may try an issue relating to the jurisdiction of 1. (2011) a sec 249. A the court or the bar to the suit created by any law for the time being in force as a preliminary issue.
16. The controversy pertaining to the provisions contained in Order 14 Rule 2 had come up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Di//on2 wherein it has B been ruled thus: – c "Under 0 .14, r 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 the issue 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 Jaw and fact as preliminary issues. Normally all issues in a suit should be tried by the Court: not to do so, especially when the decision on issue$ even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit."
17. Be it stated, the aforesaid pronouncement was made before the amendment of the Code of Civil Procedure in 1976.
18. In Ramesh D. Desai and others v. Bipin Vadilal Mehta and others3, while dealing with the issue of limitation, the Court opined that 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. The Court further proceeded to state 1 that a plea of limitation is a mixed question of fact and law. On G a plain consideration of the language employed in sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried jiS a preliminary issue. In the said judgment the Court opined as follows: – 2. AIR 1964 SC 497 : (1964) 4 SCR 409. 3. (2006) s sec 638 SATTI PARADES! SAMADHI & PHILLIAR TEMPLE v. M. SANKUNTALA (D) TR. LRS. [DIPAK MISRA, J.] "13. 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 c 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 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 lopsided 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."
19. In the case at hand, we find that unless there is determination of the fact which would not protect the plaintiff under Section 10 of the Limitation Act the suit cannot be dismissed on the ground of limitation. It is not a case which will come within the ambit and sweep of Order 14, Rule 2 which would enable the court to frame a preliminary issue to adjudicate thereof. The learned single Judge, as it appears, has remained totally oblivious of the said facet and adjudicated the issue as if it falls under Order 14, Rule 2. We repeat that on the scheme of Section 10 of the Limitation Act we find certain facts are to be established to throw the lis from the sphere of the said provision so that it would come within the concept of limitation. The Division C Bench has fallen into some error without appreciating the facts in proper perspective. That apart, the Division Bench, by taking recourse of Articles 92 to 96 without appreciating the factum that it uses the words "transferred by the trustee for a valuable consideration" in that event the limitation would be twelve years D but in the instant case the asseveration of the plaintiff is that the trustee had created three settlement deeds in favour of his two daughters and a granddaughter. The issue of consideration has not yet emerged. This settlement made by the father was whether for consideration or not has to be gone into ~nd similarly whether E the property belongs to the trust as trust is u·nderstood within the meaning of Sectin10 of the Limitation Act has also to be gone into. Ergo, there can be no shadow of doubt that the issue No. 1 that was framed by the learned single Judge was an issue that pertained to fact and law and hence, could not have been adjudicated as a preliminary issue. Therefore, the impugned I F order is wholly unsustainable.
20. We have not expressed any opinion with regard to the issue of limitation except saying that the present issue could not have been taken up as a preliminary issue. As the suit is pending since 1997 we would request the learned single Judge of the G High Court of Madras to dispose of the suit as expeditiously as 1 possible.
21. Resultantly, the appeal is allowed and the impugned judgments are set aside without any order as to costs. Rajendra Prasad Appeal allowed.