Baishnab Charan Ray vs Debraj Sahoo and Another

P.K. Tripathy, J.—Heard.

This revision petition is disposed of in the following manner.

Defendant No. 2 in Money Suit No. 2 of 1999 of the Court of Addl. Civil Judge (Jr. Division), Baramba is the petitioner and plaintiff is the opposite party No. 1 in this revision. That is a suit with the claim of damage on the ground of malicious prosecution in S.T. No. 415 of 1997 of the Court of Asstt. Sessions Judge, Athagarh.

It is not disputed at the Bar that defendant No. 1 was the informant and defendant No. 2 was the Investigating Officer of Baramba P. S. Case No. 24 of 1993. Defendant No. 2 investigated into the case and submitted charge-sheet for the offences, inter alia, punishable u/s 436. I.P.C., and as a consequence the concerned C.R. Case No. 24 of 1993 was committed to the Court of Session, and learned Assistant Sessions Judge, Athagarh registered the case as S.T. No. 415 of 1997, conducted the trial and delivered the judgment on 15-7-1998 acquitting the plaintiff who was the accused in that case. After acquittal plaintiff has instituted the suit for malicious prosecution claiming damage to the tune of Rs. 10,000/- (ten thousands). It appears from the certified copy of the order dated 12-12-2002 of the learned Civil Judge (Jr. Division), Baramba that the suit was filed on 12-10-1999, i.e., after lapse of one year and three months from the date of the aforesaid order of acquittal. After entering appearance in the suit defendant No. 2 filed written, statement, inter alia, challenging to the maintainability of the suit stating that it is barred by law of limitation. After filing of that written statement issues were settled and Issue No. 3 reads "Is the suit barred by law of limitation". On 5-7-2001 defendant No. 2 filed an application to dispose of the above quoted issue as preliminary issue and to dispose of the suit accordingly. Plaintiff contested to that application and claimed for disposal of the suit on all the issues in terms of the provision in Order 14, Rule 2(2), C.P.C. After hearing the parties and referring to the case of Puranda Behera v. Dr. Narayan Shanakr Behera 1991 (1) OLR 455, learned Civil Judge (Jr. Division) rejected the application on the ground that the issue involves a mixed question of fact and law inasmuch as plaintiff has also prayed to condone the delay u/s 5 of the Limitation Act.

Learned Counsel for the petitioner while referring to the provision in Order 14, Rule 2, C.P.C. and the ratio in the case of Puranda Behera (1991 (1) OLR 455) (supra) also refers to a Division Bench decision of this Court in the case of Madhabananda Ray and Another Vs. Spencer and Company Ltd., argues that in the present case the question of limitation being considerable on mere perusal of the averment in the plaint and the provision in Article 74 of the Limitation Act, 1963 and since no factual investigation or recording of evidence is necessary, therefore, the Court below has failed to exercise the jurisdiction vested in him in accordance with law. He further argues that the provision in Section 5 of the Limitation Act is not applicable to condone delay for institution of a suit and therefore learned Civil Judge (Jr. Division) should have decided the aforesaid Issue No. 3 on the question of limitation as a preliminary issue. Accordingly he argues to set aside the impugned order and to direct the Court below to consider that issue as a preliminary issue.

In the case of Puranda Behera (1991 (1) OLR 455) (supra) a similar matter came for consideration and this Court found the conduct of the Presiding Officer in referring to certain statements on record for deciding that issue as an investigation not permissible and accordingly set aside the order passed by the trial Court in deciding the preliminary issue.

In the case of Madhabananda Ray and Another Vs. Spencer and Company Ltd., a Division Bench of this Court in a concurrent judgment have been pleased to give their respective views on the position of law. In that context, referring to various judgments of this Court delivered after the amendment of the CPC in the year 1976, have been pleased to propound that the position of law as it stood prior to the amendment has materially changed empowering and authorising the trial Court to take up a preliminary issue if such preliminary issue can decide the suit without recording any evidence or without entering into any factual controversy. In that context, a decision of Patna High Court reported in Dhirendranath Chandra Vs. Apurba Krishna Chandra and Others, was referred to with approval. The relevant portions from that quoted passage is quoted for ready reference :--

"..... There is, however, nothing in Sub-rule (2) which in my opinion makes it obligatory for the Court to try such an issue first in all cases. If, therefore, the Court is of opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in Clauses (a) and (b) of Sub-rule (2) as a preliminary issue before taking up other issues, I do not think it has committed an error touching jurisdiction."

Keeping in view the fact situation involved in this case, the above noted proposition of law enunciated by this Court, the extent of jurisdiction which is to be exercised by this Court u/s 115, C.P.C. and the principle enunciated by Patna High Court, this Court does not find it to be a case of jurisdictional error for refusing to decide the issue on limitation as a preliminary issue. However, it will be proper for the Court below to read the statutory provision before interfering with the same or expressing opinion on its scope and applicability in as much as learned Civil Judge has stated in the impugned order that a factual finding is necessary to condone the delay which has occurred in institution of the suit. If learned Civil Judge would have taken care to read the provision in Clauses (b), (j) and (1) of Section 2 read with Sections 4 and 5 of the Limitation Act, 1963, then he would not have opined to consider consideration of delay u/s 5 of the Limitation Act for institution of the suit beyond the prescribed period of limitation. It is therefore always better to have the temperament to learn and habit to read with understanding before giving a decision on interpretation of law and its applicability to facts and circumstances involved in the case. It is well that ''to err is human'' and in such cases it is proper for one to ''learn from his own mistake''.

Be that as it may, in course of argument learned Counsel for the petitioner states that petitioner shall file appropriate application to invoke jurisdiction of the Court below for rejection of the plaint in view of the provision under Order 7. Rule 1 l(d), C.P.C. Thus, if any such application shall be moved by the petitioner, that be considered by the Court below in accordance with law but expeditiously and providing due opportunity of hearing to both the parties.

For the reasons indicated above, the Civil Revision stands disposed of without interfering with the impugned order.