IMPORTANT POINT
A disputed question cannot be decided as a preliminary issue.

JUDGMENT (ORAL)

The present petition is filed by the petitioners – original defendants challenging orders passed by the Principal Senior Civil Judge, Surat in Special Civil Suit No.360 of 2013 :- (i) dated 20.09.2022 passed below application Exh.142 for framing the issue of limitation as a preliminary issue for deciding the suit and (ii) dated 05.07.2019 below application Exh.131 for recasting and reframing the issues already framed, so as to include the issue of delay and laches. The trial Court has rejected both these application Exh.142 and Exh.131 filed by the petitioners – original defendants.

2. Heard learned advocates.

3.1 Learned advocate Mr.Nandish Chudgar for learned advocate Mr.Shrinil A. Shah for the petitioners has submitted that the trial Court has committed gross error of law in deciding the applications at Exh.142 and 131. He has submitted that the impugned orders are bad in law, contrary to the settled principles of law, unjustifiable and unreasonable. He has submitted that suit itself is barred by limitation as the issue is of the year 1986. He has submitted that the trial Court has failed to appreciate that when the suit is barred by limitation, which can be decided on the basis of the documents and the averments made by the plaintiffs in the plaint itself, then the issue of limitation should be decided as a preliminary issue and not to make the parties undergo the long and lengthy process of the trial. He has submitted that the trial Court has failed to appreciate that in cases where specific facts are admitted and the question of law arises, which is dependent upon the outcome of the admitted facts, then it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2 of the Code of Civil Procedure, 1908.

3.2 In support of his submissions, he has relied upon the following decision:—

2022 SCC OnLine SC 1322 – Sukhbiri Devi versus Union of India

3.3 He has submitted that this petition may be allowed.

4.1 Learned senior advocate Mr.Shirish Sanjanwala with learned advocate Mr.Dilip Kanojiya for the contesting respondents has submitted that the trial Court has rightly considered the applications and the reply of that application and after hearing the parties, passed the impugned orders. He has submitted that the issue before this Court is the perversity in the impugned orders and not the facts. He has submitted that the defendants have earlier filed an application Exh.121 before the trial Court and requested to raise preliminary issue of limitation, which the trial Court has, after hearing the parties, rejected, which is not challenged by the defendants before any higher forum till date. He has submitted that the defendants have again filed an application Exh.142 for the same issue of limitation, which is again rejected by the trial Court vide impugned order. He has submitted that the defendants have time and again filed unnecessary application/s in the suit proceedings and thereby tried to prolong the trial. He has submitted that this Court has very limited powers to interfere in the impugned orders under Article 227 of the Constitution of India.

4.2 In support of his submissions, he has relied upon the following decisions:—

(i) AIR 1969 SC 941 – Satyadhyan Ghosal versus Smt. Deorajin Debi

(ii) (2002) 10 SCC 501 – Raj Narain Sarin versus Laxmi Devi

(iii) (2003) 10 SCC 282 – Mercantile Industrial Development Co. Pvt. Ltd. Versus Wahid Chauhan

(iv) AIR 2006 SC 3672 – Ramesh B. Desai versus Bipin Vadilal Mehta

(v) AIR 1964 SC 993 – Arjun Singh versus Mohindra Kumar

4.3 He has submitted that this petition may be dismissed.

5. Rule. Learned advocate Mr.Dilip Kanojiya waives service of notice of rule on behalf of the respondents. With consent of the learned advocates for the respective parties, the matter is taken up for hearing and decided finally today.

6. I have heard learned advocates for the respective parties. I have p