JUDGMENT :

Pankaj Jain, J.

Challenge is to the order dated 23.08.2023 passed by Civil Judge, Junior Division, Kamal (Annexure P-5) whereby the issue of limitation has been ordered to be treated as preliminary issue.

2. Plaintiff filed suit for declaration to the effect that he is entitled to recover an amount of Rs. 18,65,832/-. In the suit defendant filed application under Order VII Rule 11 CPC claiming that the suit was barred by law as from the perusal of the plaint itself it can be held that the same was filed beyond the prescribed period of limitation. The said application was dismissed vide order dated 20.08.2019. The matter came before this Court in CR No.5318 of 2019. The revision was disposed off with the direction to the Trial Court to decide application for framing preliminary issue of limitation considering ratio of law laid down in Rajinder Singh Rathore Vs. G.S.Rathore (Ghanshyam Singh Rathore) and ors. 2018(2) Law Harald 967. Application was moved before the Trial Court praying for framing of the issue qua limitation and treating the same as preliminary issue. The same has been allowed by the Trial Court observing as under :-

'It is not in dispute that earlier plaintiff filed a suit for recovery and lateron, same was dismissed vide judgment dated 06.10.2017. As per plaint, last transaction between parties of the suit was took place on 29.10.2011 whereas present suit was filed on 18.11.2017. A suit for recovery is to be filed within three years but here suit was filed in the year 2017 and therefore it can say that there is a ground for framing the issues of limitation as preliminary issues. Issue has been framed on 02.11.2019 but in view of findings of Rajinder Singh Rathore case (supra), issue of limitation i.e. issue no. 2 is treated as preliminary issues.

3. Provision as contained under Order XIV Rule 2 CPC reads as under:-

'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 the issue relates to-

4. The provisions contained in Order XIV Rule 2 CPC came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 Supreme Court 497: (1964) 4 SCR 409 wherein it has been ruled thus :-

"Under Order 14 Rule 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 the issue of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit."

5. The provision was amended by the 1976 Amendment Act. Interpreting the amended provision Supreme Court echoed the same view in Ramesh D. Desai and others v. Bipin Vadilal Mehta and others (2006) 5 SCC 638 observing as under :-

"13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that 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 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