Limitation issues are mixed questions of fact and law and cannot be determined as preliminary issues under the CPC.

ORDER

1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

2. The petitioner has preferred the present writ petition claiming the following relief :_

"(i) by an appropriate writ, order or direction, the order dated 07.09.2018 (annex. 7) passed by the Civil Judge and Judicial Magistrate, Jetaran, District Pali in Original Civil Suit No.50/2001 may kindly be declared illegal and be quashed and set aside.

(ii) By an appropriate writ, order or direction, the application under Order 14 Rule 2 of the CPC (Annex. 5) filed by the petitioner may kindly be allowed and the additional issue which has been framed vide order dated 21.08.2018 (Annex. 4) may kindly be ordered to be decided as preliminary issued in accordance with law."

3. Learned counsel for the petitioner submits that the application under Order 14 Rule 2 CPC has been wrongly dismissed by the learned court below, as admittedly as per Section 59 of the Limitation Act, 1963, a decree can be sought to be set aside within the limitation of three years whereas the decree in question is dated 02.06.1976 and whereas it is sought to be reopened for challenge in the year 2001.

4. Learned counsel for the petitioner further submits that the prayer of the respondents itself is clear that they are seeking to reopen the decree passed in 1971, in year 2001, which is formidably and absolutely barred, as per Section 59 of the Limitation Act, 1963.

5. Learned counsel for the petitioner further submits that the Hon'ble Apex Court has laid down the law in the matter of Abdul Rahman Vs. Prasony Bai & Anr. reported in AIR 2003 Supreme Court 718, wherein the Honb'le Apex Court has held that if a preliminary issue can decide the suit then the preliminary issue has to be decided, particularly in perspective of res-judicata and / constructive res-judicata. Learned counsel for the petitioner refers to para 21, which reads as under :-

"For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues. "

6. Learned counsel for the respondents however, submits that in accordance with the judgment passed by the Hon'ble Apex Court reported as 2014 DNJ (SC) 669, wherein it was held that issue of limitation cannot be taken-up as a preliminary issue, since it is a mixed question of facts and law.

7. Learned counsel for the respondents further submits that he has pleaded fraud in his suit, which is an exception to Section 59of the Limitation Act, 1963 as per the judgment passed by the Hon'ble Apex Court in the matter of Prem Singh & Ors. Vs. Birbal & Ors. reported in 2006(5) SC 353.

8. Learned counsel for the respondents further submits that learned court below has rightly passed an order whereby the limitation has been considered as a mixed question of facts and law and thus, has to be decided alongwith all other issues, which have been framed.

9. This Court, on examining the record of the case and also precedent law cited by learned counsel for both the parties and submissions made by learned counsel for the parties, is of the opinion that conclusion arrived at by the learned court below is in accordance with law, as the Hon'ble Apex Court has laid down the law that issue of limitation if taken as a mixed question of facts and law cannot be taken-up as a preliminary issue. In the present case also, the only defence to the suit and the exception of Section 59 of the Limitation Act, 1963 would be fraud and such fraud can be proved only if