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2014 (7) TMI 1332 - SC - Indian LawsTime Limitation - suit for declaration that the three settlement deeds, all dated 27.3.1978 and registered as Document Nos. 248, 249 and 443 of 1978 with the Sub Registrar's Office, Royapuram, is barred by limitation of time - whether an issue of limitation could at all have been taken up as a preliminary issue? HELD THAT:- In Ramrameshwari Devi and Ors. v. Nirmala Devi and Ors. [2011 (7) TMI 1305 - SUPREME COURT], while 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 the court or the bar to the suit created by any law for the time being in force as a preliminary issue - In Ramesh D. Desai and Ors. v. Bipin Vadilal Mehta and Ors. [2006 (7) TMI 325 - SUPREME COURT], 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 that a plea of limitation is a mixed question of fact and law. On 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 as a preliminary issue. 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 issue of consideration has not yet emerged. This settlement made by the father was whether for consideration or not has to be gone into and similarly whether the property belongs to the trust as trust is understood within the meaning of Section 10 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 order is wholly unsustainable. Appeal allowed - decided in favor of appellant.
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