Once an issue is framed and treated as a preliminary issue, it cannot be recalled or set aside without any justification.

JUDGMENT

Jyoti Singh, J. - This Civil Revision has been preferred under Section 115 CPC assailing the order dated 19.02.2018 vide which the Trial Court in CS No.17455/2016 has held that limitation being a mixed question of fact and law cannot be adjudicated without leading evidence and hence would only be decided after holding trial and has declined to adjudicate the issue of limitation as a preliminary issue. Petitioner herein is Defendant No. 1 in the Suit and Respondent Nos. 1 to 3 are the Plaintiffs and are being referred to by the same status as Defendant and Plaintiffs respectively in the present petition.

2. Brief facts to the extent necessary and relevant for adjudication of the present petition are that Plaintiffs instituted a suit for recovery of a sum of Rs. 2 Crores and @ of Rs. 25 Lacs each day from 23.06.2009 for an alleged damage to their reputation along with pendente lite and future interest @ 18% per annum against the Defendant and Respondent No. 4 herein. Defendant filed the written statement and is contesting the suit. Along with the plaint, Plaintiffs filed copies of Advertisement which were alleged to have been published by the Defendant and are also available on the internet. Vide order dated 01.06.2011, Defendants were injuncted from using the name and photograph of Plaintiff No. 1/Nitin Jain. During the pendency of the proceedings, Plaintiffs filed an application under Order XXXIX Rule 2A CPC inter alia alleging violation of the order dated 01.06.2011. In the said application, it was averred by the Plaintiffs that in utter disregard of the injunction order, passed by the Court, Defendants continued to show the name and photographs of Plaintiff No.1 on their website. Along with the application, Plaintiffs annexed documents allegedly from the websites of the Defendants published on 29.08.2011 and 30.08.2011. Reply was filed by the Defendant to the said application disputing and denying the allegations of the Plaintiffs that there was violation of the interim injunction.

3. On 12.03.2014, issues were framed by the Court and vide the same order, Court observed that the issue qua limitation did not require any evidence as the Advertisements allegedly causing loss to the reputation of the Plaintiffs were all prior to April, 2010 while the suit was instituted on 31.05.2011. Accordingly, it was directed that the issue qua limitation would be treated as a 'preliminary issue' and the matter was adjourned to 28.07.2014 for arguments on the preliminary issue of limitation.

4. Subsequent to framing of the issues on 12.03.2014, the Plaintiffs filed an application under Order VI Rule 17 CPC seeking amendment of the plaint for incorporating a plea in the pleadings that the Defendants were admittedly using/misusing the name and photographs of Plaintiff No. 1 till 18.10.2011 on its websites on various links. Amendment was also sought in the paragraph relating to cause of action to include 'cause of action further arose on each and every date till 18.10.2011, which was itself admitted by the Defendant'. Defendant filed a reply to the application opposing the amendment on the ground that cause of action sought to be incorporated by way of amendment was barred by time and the application was misconceived having been filed to overcome the delay in filing the suit. Significantly, on 01.03.2016, the application was disposed of as not pressed by the Plaintiffs and Court directed the matter to be listed for arguments on preliminary issue qua limitation, on 12.07.2016.

5. On account of the pecuniary jurisdiction, suit was transferred to the District Court and vide the impugned order, learned Trial Court has held that issue of limitation being a mixed question of fact and law, cannot be decided without holding trial.

6. Learned counsel for the Petitioner assails the order on manifold grounds. It is argued that Plaintiff No. 1 was a student of the Defendant No. 1/Coaching Institute in the year 2008-2009. After he faired well at the IIT/