Order XIV Rule 2 CPC Confers No Jurisdiction On Court To Decide Mixed Question Of Law And Fact, If Facts Are Not Clear From Plaint: Sikkim HC

The Court was hearing a Writ Petition under Article 227 of the Constitution of India seeking to challenge the Order petitioner's challenge to the order of the Trial Court which decided against the petitioner-defendant and in favour of the respondent/plaintiffs on a preliminary issue regarding limitation.

The bench of Justice Bhaskar Raj Pradhan perused Order XIV Rule 2 of the CPC and observed, “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 party 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 enforced, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determine, and may deal with the suit in accordance with the decision on that issue.”

Advocate Laxmi Chakroborty appeared for the Appellant and Senior Advocate Jorgay Namka appeared for the Respondent.

Brief Facts-

In the present case, the Petitioner filed an application before the trial Court under Order XIV Rule 2 read with section 151 of the Code of Civil Procedure, 1908 (CPC) for deciding the issue framed on examination of the pleadings i.e. whether the suit of the respondents as (plaintiffs) is maintainable in law as a preliminary issue with regard to limitation was raised given an admission made by plaintiff during his cross-examination in the trial.

The Court mentioned the Supreme Court decision in Nusli Neville Wadia vs. Ivory Properties & Ors. and quoted, “Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue.”

The Court noted that the application under Order XIV Rule 2 of the CPC however, sought to rely upon a portion of one part of the cross-examination to seek the examination of the issue of limitation as a preliminary issue.

The Court said that the issue of limitation which was sought to be raised in the application under Order XIV Rule 2 of the CPC was a mixed question of fact and law while noting that there is no specific admission of the plaintiff and they only learned through an RTI response that their ancestral property, initially owned by Golay Tshering Bhutia and later by Dorjee Bhutia, had been illegally transferred and recorded in the name of defendant no.1.

The Court observed, “The provision confers no jurisdiction on the court to decide a mixed question of fact and law, unless the facts are clear from the plaint itself.”

Accordingly, the Court said that the question determined by the learned Trial Court could not have been determined as a preliminary issue.

Finally, the Court set aside the impugned order and rejected the application filed under Order XIV Rule 2.

Cause Title: Phigu Tshering Bhutia v. Shri Karma Samten Bhutia

Appearance:

Appellant: Adv. Laxmi Chakraborty, Adv. Dewen Sharma Luitel and Adv. Bhaichung Bhutia

Respondent: Sr. Adv. Jorgay Namka, Adv. Rinchen Ongmu Bhutia, Adv. Avinash Dewan and Adv. Lahang Limboo

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