TMI Blog2002 (9) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... he point relating to bar of limitation. The issues, including the issue regarding bar of limitation were framed on 1-10-2001. The petitioners thereafter filed an application dated 12-6-2001 under section 9A of the Code of Civil Procedure, 1908 (for the sake of brevity, hereinafter referred to as the C.P.C. ) requesting that preliminary issue of limitation be framed and decided as such. The same was allowed by the trial Court by its order dated 1-10-2001. The preliminary issue was framed to the effect that: Whether the suit is filed within limitation? On the very day, i.e. on 1-10-2001, the respondent No. 1 herein filed an application under section 9A(2) for grant of injunction pending the disposal of the issue of limitation. However, when the matter came up for hearing before the trial Court on 13-3-2002, the trial Court decided to deal with the said issue of limitation along with the other issues in the suit and not as preliminary issue by the impugned order dated 13-3-2002. 3. The impugned order is sought to be challenged primarily on the ground that the trial Court could not have modified its decision to decide the issue of limitation as a preliminary issue without hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. Sub-rule (2) thereof provides that the Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. The most important provisions of law contained in Order XIV is Rule 2 and it reads thus: 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 det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocieties Act, 1960 to the Registrar, Co-operative Societies, Pune. Further, the reply of the defendant Nos. 4 and 5 i.e., the petitioners herein to Exhibit-117, which was an application under section 9A(2), discloses that: Without prejudice it is submitted that the plaintiff has not disclosed any prima facie case before this Court for the grant of the relief under Section 9A(2) of the Civil Procedure Code. It is submitted that these defendants long back had created third party interest and details in that behalf were disclosed before the Supreme Court of India and after the decision of the Supreme Court also third party interest has been created. Hence a relief in that behalf is infructuous. In this matter after framing of the preliminary issue plaintiff itself is not leading evidence on that issue and prolonging the matter. By calling upon the parties to produce irrelevant documents this plaintiff itself is instrumental in delaying the matter. 7. Reverting to the first ground of challenge, it is to be seen that Rule 5 of Order XIV of the Civil Procedure Code amply empowers the Court to amend or strike out issues as and when required during the pendency of the suit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the jurisdiction is raised at the time of hearing of any interim application and not otherwise. In other words, in a suit while hearing the matter pertaining to the application for temporary injunction or appointment of Receiver or any other interim relief in terms of Order XXXIX of the Civil Procedure Code, and if the issue of jurisdiction of the Court to deal with the matter itself is raised, certainly the Court would be obliged to frame such issue and decide the same as a preliminary issue in terms of the provisions contained in Section 9A of the Civil Procedure Code. The provisions thereunder would have no application once the suit is ordered to proceed on merits. As already seen hereinabove, the application for interim relief in the case in hand was disposed of on 3-1-1996. The appeal against the same was disposed of on 22-1-1997. Being so, there was no occasion for the Court below to deal with the issue of limitation as a preliminary issue in terms of Section 9A in the facts and circumstances of the case. Undoubtedly, that would not prevent the Court from framing any issue of jurisdiction as a preliminary issue if the facts and circumstances in a matter warrants so, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. With a view to avoid multiplicity of proceedings, as observed by the Division Bench of this Court, it would be, therefore, essential that issue of jurisdiction in the context of suit being barred by limitation is framed and decided in the first instance before proceeding to decide the suit on any other issue....... 10. It is pertinent to note that the suit which was filed and which was the subject-matter before the learned single Judge in Sudesh's case was suit of the year 1999 being Special Civil Suit No. 170 of 1999. It was for the purpose of specific performance of contract dated 7-11-1994. Apparently, the suit was filed beyond the period of three years from the date of execution of the agreement. The facts of the case do not disclose that the pleadings in the plaint having revealed facts disclosing the cause of action having arisen within three years prior to the date of filing of the suit, and the arguments advanced in the said petition were to the effect that This aspect of the matter can be adjudicated on the basis of the pleadings before the Court. As is revealed from para 7 of the judgment quoted hereinabove as being the arguments on behalf of the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in [1964] 1 SCR 495 , dealing with the subject of necessity or otherwise of the framing of issue of limitation as the preliminary issue or to deal with the same as such, has ruled thus: Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and to give relief. 14. The difference between lack of jurisdiction and irregular exercise of jurisdiction is always to be borne in mind. It is well said that a Court has jurisdiction to decide wrong as well as right . When the Court has jurisdiction to entertain the matter, it can exercise its jurisdiction properly or improperly as well as regularly or irregularly hut the defect in exercise of jurisdiction does not go to the root of the matter and error in exercise of jurisdiction can be remedied. However, if any order is passed without jurisdiction to the Court, then it is a nullity and it cannot be remedied. 15. The rule of limitation is a rule of procedure. When the law of limitation prescribes a period of limitation for institution of a suit of a particular nature, it does not create any right in favour of any person but it merely provides that the remedy which the person is entitled to, consequent to the cause of action having arisen in his favour, is to be exercised within the period prescribed and not beyond such period. Likewise, the rules of limitation do not destroy the rights of the parties but they simply discourage the lethargy and dilatory tactics in seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of jurisdiction finally and the Court by referring to the averments made in the plaint, would ordinarily determine whether or not the Court has jurisdiction to try the suit. ...... 18. Rule 2 of Order XIV of the Civil Procedure Code and more particularly Sub-rule (2) thereof empowers the Court to frame preliminary issues regarding jurisdiction of the Court and the bar to a suit created by any law for the time being in force when such issues can be disposed of as issues of law only. Apparently, in cases where such issues can be disposed of as issues of law only, it would not require any recording of evidence, and based on the pleadings and contentions of the parties, the Court will have to dispose of such issues. But that is not the case when the issue of jurisdiction would be an issue of law as well as of facts. Certainly, in case of facts, the parties will have to place those facts on record and establish the same in order to prove their contention in relation to existence or absence of jurisdiction of the Court to deal with the matter. Nevertheless, in view of the provisions contained in Sub-rule (1) of Rule 2 of Order XIV, a suit in a normal course, has to be disposed of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. Contention was also raised that the objection to limitation is based on Section 487 of the Bombay Provincial Municipal Corporations Act, 1949. Section 487(1) provides that no suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act; (a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney. Advocate, Pleader or agent, if any for the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action. Stress is laid on Clause (b) which provides that the suit has to be filed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 9A is only in cases where such an issue is raised while dealing with the application for grant of or vacating any interim relief, including the appointment of Commissioner, matters pertaining to stay and similar such interim applications and not otherwise; (ii) the jurisdiction of the Court to re-frame or re-cast issues in exercise of the powers under Rule 5 of Order XIV of the Civil Procedure Code is not subject to pre-hearing of the parties and consequent to such re-framing or re-casting or striking of the issues in exercise of those powers, the parties are not precluded from approaching the Court for further exercise of powers under the said Rule, either for re-framing of the issues or for recalling of the order passed earlier by the Court under the said Rule; (iii) the issue regarding bar of limitation can be disposed of as a preliminary issue under Order XIV, Rule 2(2) of the Civil Procedure Code only in cases where it can be disposed of as an issue of law and not otherwise. In cases where such an issue requires recording of evidence, it has to be disposed of along with the other issues except when the Court, in its opinion, thinks fit to postpone the sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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