The Court clarified that mixed questions of fact and law, such as maintainability of a suit based on admissions, cannot be decided as a preliminary issue unless the facts are clear from the pleadings.

JUDGMENT :

Bhaskar Raj Pradhan, J.

1. This petition under Article 227 of the Constitution of India seek to challenge the Order dated 11.04.2023 passed by the learned Senior Civil Judge, Gangtok (The learned Trial Court) on an application filed by the petitioner herein as (defendant no.1) 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 herein as (plaintiffs) is maintainable in law as a preliminary issue in view of an admission made by plaintiff no.1 during his cross examination in the trial.

2. By the impugned Order the learned Trial Court has examined the rival submissions, the cross examination of plaintiff no.1, the other evidence pointed out by the parties and the judgments referred to and opined that there is no doubt that the court has discretion to decide the question of limitation as a preliminary issue as decided by the Supreme Court in Sukhbiri Devi & Ors. vs. Union of India, 2022 SCC OnLine Delhi SC 1322. Thus, the learned Trial Court decided to take up the issue as sought for by the defendant no.1 as a preliminary issue. Having done so and examined the issue the learned Trial Court decided the same against the defendant no.1 and in favour of the plaintiffs. The defendant no.1 is aggrieved by the impugned order and has approached this Court.

3. In Sukhbiri Devi (supra) the learned Trial Court had framed a preliminary issue on the question of limitation, evidently, upon forming an opinion that the case may be disposed of on an issue of law and that it warrants postponement of settlement of other issues until after the issue has been determined and to deal with the suit in accordance with the decision on that issue. The said preliminary issue was answered in the negative and accordingly the suit was dismissed. The judgment was challenged in an appeal which was also dismissed. The second appeal before the High Court was also dismissed answering the question of law against the appellant. In the appeal before the Supreme Court three substantial questions were determined and considered. The first question whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2 (2) of the Code of Civil Procedure, 1908 (the CPC) was answered by holding that “As held by the three Judge Bench in the decision in Nusli Neville Wadia’s Case (supra) the provisions under Order XIV Rule 2 (1) and Rule 2(2) (b) permit to deal with and dispose of a suit in accordance with the decision on the preliminary issue”.

4. In Nusli Neville Wadia vs. Ivory Properties & Ors., (2020) 6 SCC 557 the Supreme Court held:

“51. The provision has been carved out under Section 9-A CPC to decide, question of jurisdiction to entertain, at the stage of deciding the interim application for injunction and the very purpose of enactment of the same was that the suits were being instituted without serving a notice under Section 80, which at the time of initial incorporation of provisions could not have been instituted without serving a notice of two months. There was a bar to institute a suit. It became a practice that after obtaining injunction, suit was allowed to be withdrawn with liberty to file fresh suit after serving the notice. To take care of misuse of the provisions, Section 9-A was introduced in the year 1970 and had been reintroduced again in 1977 to consider question of jurisdiction to entertain at the stage of granting injunction or setting aside. The provision has been inserted having the narrow meaning as at the stage of granting ex parte injunction; the question can be considered. The written stateme