PATEL PREMJI JIVRAJ Vs. PATEL SHANTILAL KANJI

JUDGEMENT

(1.) This Revision Application is directed against on order passed by the Civil Judge Junior Division Mandvi rejecting an application of the defendant to try the issue of limitation as a preliminary issue. Several issues were raised in the suit and one of them was whether the suit was barred by the law of limitation. The ground on which the defendant contended that the suit was barred by limitation was that the suit was a suit for malicious prosecution and inasmuch as it was filed more than one year after the termination of the prosecution of the plaintiff it was barred by limitation under Article 74 of the Indian Limitation Act 1963 Since the issue of limitation was an issue of law and if decided in favour of the defendant it would dispose of the entire suit the defendant made an application to the learned trial Judge to try it as a preliminary issue under Order 14 Rule 2 of the Code of Civil Procedure. The plaintiff resisted the application of the defendant and contended that the issue of limitation should not be tried as a preliminary issue and the argument of the plaintiff was that it was not possible to decide the issue of limitation without leading evidence and the proper course therefore would be to try this issue along with the other issues in the suit. The plaintiffs case was that the suit was not a suit for malicious prosecution governed by Article 74 but was a suit based on a cause of action which fell within the residuary Article 113 which prescribes a period of six years from the date of the accrual of the cause of action and the suit was therefore not barred by limitation. The learned trial Judge by an order dated 27th December 1965 held that it was not possible to decide without evidence whether the suit was a suit for malicious prosecution or not and it would therefore be desirable that the issue of limitation was tried along with the other issues and he accordingly dismissed the application of the defendant. The defendant thereupon preferred the present Revision Application in this Court challenging the order of learned trial Judge refusing to try the issue of limitation as a preliminary issue.

(2.) The application of the defendant for trying the issue of limitation as a preliminary issue was made under Order 14 Rule 2 and it is there fore necessary to notice what is the provision enacted in that Rule. Order 14 Rule 2 provides:-

(3.) But contended the learned advocate appearing on behalf of the plaintiff even if the learned trial Judge was in error in refusing to try the issue of limitation as a preliminary issue the error was not such as would bring the case within the terms of sec. 115 of the Code of Civil Procedure so as to entitle this Court to interfere with the order of the learned trial Judge in the exercise of its revisional jurisdiction under that section. The argument on behalf of the plaintiff was that the case did not fall within any of the three clauses of sec. 115 and this Court had no jurisdiction to set aside the order of the learned trial Judge. Now so far as clauses (a) and (b) of sec. 115 are concerned there can be no doubt that they have no application in the present case. This is not a case where the learned trial Judge failed to exercise jurisdiction vested in him by law or wrongly assumed jurisdiction which he did not possess. The only question can therefore be whether the case falls within clause (c) of sec. 115. Sec. 115 clause (c) empowers the High Court to call for the record of any case which has been decided by any Court subordinate to such High Court and if such subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court can make such order in the case as it thinks fit. What is the precise scope and ambit of this clause has been considered in various decisions of the Privy Council and the Supreme Court but it is not necessary to refer to them since I find that there is a decision of Divan J. in Ambubhai v. Kapilaben (1964) V G. L. R. 1035 where the learned Judge has considered these decisions and summarized the effect of these decisions in the following words:-