KHORSHEDUR RAHMAN KHAN Vs. MD. NASHIBULLAH

JUDGEMENT

(1.) The petitioner by of this application under Article 227 of the Constitution of India is before this Court with a prayer to set aside the impugned order dtd. 26/3/2024, passed by the Court of the Assistant to Deputy Commissioner, Circuit Court, Phulbari, West Garo Hills in Misc. Case No. 8 of 2023, arising out of Title Suit No. 9 of 2019, whereby the said Court had dismissed an application filed by the petitioner under Order 14 Rule 2 (2) of the CPC on the question of limitation.

(2.) The brief facts are that the respondent as plaintiff had instituted a Title Suit before the Court of the Assistant to Deputy Commissioner at Dadenggre, West Garo Hills, which was registered as TS No. 9 of 2019 for declaration of right, title and interest, recovery of possession and permanent injunction, against the petitioner amongst others, who was arrayed as defendant No. 11. The petitioner had then taken a specific plea under Sec. 3 of the Limitation Act, 1963 in his written statement, on the ground that the Title Suit was barred by limitation as the cause of action had arisen in 2001, and had prayed for dismissal of the suit on this ground. The petitioner then filed an application under Order 14 Rule 2(2) CPC which was numbered as Misc. Case No. 8 of 2023, for framing of a preliminary issue i.e. whether the suit is barred by limitation and for a decision of the suit on the said preliminary issue. The learned Trial Court after objections had been filed to the application, then was pleased to dismiss the Misc. Case No. 8 of 2023, by the impugned order dtd. 26/3/2024, on the ground that the plaintiff had pursued civil proceedings with due diligence before an appropriate forum having no jurisdiction, and that the time taken in pursuing these proceedings was to be excluded from the final computation of the limitation period by virtue of Sec. 14 of the Limitation Act.

(3.) Mr. K. Khan, learned Senior counsel assisted by Ms. M. Rahman, learned counsel for the petitioner has submitted that from the plaint itself, the respondent had categorically mentioned that the cause of action has arisen in the year 2001, and as such the prescribed period for filing a civil suit for immovable property being 12 years, the Title Suit therefore being barred by limitation, the learned Trial Court ought to have dismissed the same under Sec. 3 of the Limitation Act. He further submits that the question of limitation being a mixed question of law and facts, the learned Trial Court should have framed preliminary issue to allow the parties to adduce evidence accordingly. He further submits that the learned Trial Court had failed to appreciate Sec. 14 of the Limitation Act in its correct perspective in holding that the respondent plaintiff had executed civil proceedings with due diligence before an appropriate forum having no jurisdiction. The learned Senior counsel has then contended that for the principles of exclusion of limitation period under Sec. 14 to apply, three conditions must be satisfied i.e. proceedings are civil proceedings, prosecuted with due diligence and in good faith and that the failure of the prior proceedings was due to the defect of jurisdiction. In the instant case he submits the earlier proceedings were not civil proceedings and the same had been pursued before a Court of appropriate jurisdiction, and as such the impugned order being bad in law is liable to be set aside and quashed.