1. The petitioner has brought under challenge order dated 18th April 2012 passed by Gujarat Cooperative Tribunal, Ahmedabad (hereinafter referred to as the Tribunal) in Revision Application No.98 of 2011.
1.1. By the impugned order the learned Tribunal has set aside the order dated 04.07.2011 passed by the Board of Nominees below Exh.19 in Arbitration Suit No.43 of 2011 which was filed by present respondent bank requesting the Board of Nominees to dismiss the Arbitration Suit No.43 of 2011 in exercise of power conferred by provision under Order VII Rule 11(d) of Civil Procedure Code on the ground that the suit filed by the plaintiff (i.e. present petitioner) is time barred. The Board of Nominee rejected the said application Exh.19, however, by its order dated 18.04.2012 the learned Tribunal has set aside the said order of Board of Nominee and remitted the matter to the Board of Nominee with direction to frame and decide the issue about limitation as preliminary issue. Aggrieved by the said direction, the petitioner i.e. original plaintiff has taken out present petition. The petitioner has, inter alia, prayed that:
“9(A) Your Lordships be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 18.04.2012, passed below Exh.17, by the Gujarat State Co-operative Tribunal at Ahmedabad in Revision Application No.98 of 2011 and further be pleased to dismiss the Revision Application No.98 of 2011 of the Respondent No.1.
(B) Your Lordships may be pleased to grant restrain the Respondent No.1, its servants, agents and officers from selling, transferring, alienating or in any manner dealing with the land bearing R.S. No.591, 256 to 263 situated at Village Pal and Kawas and land bearing R.S.Nos. 858, 875 to 879, 853-A, 854 to 857 of Village Bhatha and land bearing R.S. 49- B(1) paiki and 50-A (paiki)-1-B of village: Bet or any oprtion thereof and from transferring, letting out or parting with the possession of the said properties or any part thereof and from executing any deeds and documents in respect of the said properties and from creating any third party interest till the hearing and disposal of the Lavad Case No.43 of 2011.”
2. So as to consider and appreciate the contentions raised by the petitioner it is necessary to take into account the relevant facts.
2.1. The petitioner is the original plaintiff who has initiated proceedings by way of Arbitration Suit No.43 of 2011 against present respondent bank. The said suit has been filed under Section 96, 97 and 99 of Gujarat Cooperative Societies Act, 1961, (hereinafter referred to as the Act), for redemption of mortgage and for recovery of possession of property in question and for accounts as well as for declaration and permanent injunction.
2.2. The said suit seems to have been filed in February 2011 through constituted attorney, by the plaintiff (i.e. present petitioner) who claims that she is the only surviving legal representative of the mortgagor i.e. the person who executed the said document/deed dated 18.04.1941.
2.3. It is not in dispute that the suit has been filed on strength of and on the basis of a document/deed dated 18.04.1941.
2.4. The petitioner describes the said document/deed as mortgage deed while the respondent bank insists and asserts that the said document/deed is a deed of outright sale of the property in question.
2.5. The suit has been filed almost 70 years (from the date of the deed) after the date on which the deed was executed.
2.6. The respondent bank would, in view of the date of filing of the suit, claim that the suit is barred by limitation and therefore it is not maintainable in law and consequently the Court is obliged to dismiss the same in light of provisions contained under Order VII Rule 11(d) of the Code of Civil Procedure.
2.7. On a cursory glance at the document in question it emerges that the document provides for right to repurchase the property in question from the respondent bank (in whose favour the document is executed). The said document also gives out that such right was to be exercised within five years from the date of execution of the document in question. However, now, after about 70 years the said right is sought to be exercised by legal representative of the person who executed the said document/deed. It appears that in the meanwhile the respondent bank has sold off certain parcels of lands out of the total block of land being the property in question. The plaintiff-petitioner has claimed that when she came across recent advertisement published by the bank declaring its intention to sell some more parcels of land, she preferred the suit to restrain the bank from selling the property in question and also for redemption of mortgage, for accounts, for possession of property as well as permanent injunction and declaration.
2.8. The respondent bank appeared before the Board of Nominees and filed its reply contesting the suit. In its reply the respondent bank raised diverse contentions including objection against maintainability of the suit on the ground that the suit is not maintainable and is barred by limitation.
2.9. After filing its reply, the respondent bank moved a separate application i.e. Exh.19 and requested the Board of Nominees to dismiss the suit in view of provisions contained under Order VII Rule 11(d).
2.10. The petitioner – plaintiff filed reply-objections and opposed the said application Exh.19 filed by the respondent bank and claimed that in view of the nature and scope of the suit, the suit cannot be dismissed as barred by limitation and in any case having regard to the nature of the suit and particularly statements in the plaint, the provisions under Order VII Rule 11(d) would not be attracted and applicable and the application deserve to be rejected.
2.11. The Board of Nominees considered the application and the reply as well as the submissions by the plaintiff and the respondent bank. After considering relevant aspects Board of Nominees rejected the application Exh.19.
2.12. The respondent bank carried the matter before the Revisional Authority by filing a revision application which came to be registered as Revision Application No.98 of 2011. The learned Tribunal considered the Revision Application and the rival submissions and partly allowed the application by remitting the case to the Board of Nominees with a direction to frame an issue about limitation and to decide such issue as preliminary issue.
2.13. Feeling aggrieved by such order the original plaintiff has preferred present petition and challenged the order dated 18.04.2012 passed by the learned Tribunal.
3. Heard Mr. N.D.Nanavati, learned Senior Counsel with Mr.D.B.Kakkad, learned Advocate for petitioner-plaintiff and Mr.A.J.Patel, learned counsel for respondent bank and considered the record of present petition. Having regard to the requests by the learned Advocates for the contesting parties and considering the urgency expressed by the learned Advocates, the petition is taken up for hearing and final decision at this stage. The Learned Advocates for respondents have waived service of process.
4. Learned Senior Counsel for the petitioner has submitted that the suit before the Board of Nominees has been filed under Section 96 and Section 99 of the Act. It is submitted that the Act contains specific provision namely viz. Section 97, prescribing limitation for filing diverse type of applications or suits or appeals under the Act and that therefore the provision under Section 97 would govern the proceedings under the Act and recourse cannot be had to the provisions under Limitation Act, 1963. It is also claimed that in view of the provision under Section 97 of the Act the contention that the suit is barred by limitation is misconceived and unsustainable. It is also claimed that in view of the plaint and its scope as well as the provisions under the Act the provisions under Order VII Rule 11(d) would not be attracted in present case and the application Exh.19 has been rightly rejected by the Board of Nominees. Learned Senior Counsel for petitioner submitted that the learned Tribunal has committed error of law and jurisdiction in passing order dated 18.04.2012 whereby the Board of Nominees is directed to decide the issue of limitation as preliminary issue. He also submitted that the objection raised on ground of limitation would require appropriate evidence and that therefore the contesting parties will have to lead necessary evidence for the said purpose and that therefore it would not be appropriate to require the parties to lead evidence in two or more stages i.e. in the first stage for determining the issue of limitation and then on merits of the controversy. The learned Senior Counsel for the petitioner relied on the decision of the Apex Court in case of Balasaria Construction (P) Ltd. v/s. Hanuman Seva Trust & Ors. [(2006) 5 Supreme Court Cases 658]
4.1. The learned counsel for the respondent bank has opposed the petition and submissions by the learned Senior Counsel for the petitioner. He submitted that the suit is barred by limitation. The learned counsel for respondent bank relied on Article 61(a) of the Limitation Act which prescribes limitation of 30 years for suit for redemption or to recover possession of mortgaged property which ex facie renders the suit (which is filed after almost 70 years or at least after more than 60 years considering five years period mentioned in the deed/document) barred by limitation and therefore the provisions under Order VII Rule 11(d) is attracted. He submitted that the learned Tribunal has not committed any error in remitting the matter to the Board of Nominees with direction to decide the issue about limitation, as preliminary issue. The learned counsel for the respondent submitted that the order passed by the learned Tribunal is just, legal, equitable and proper and does not suffer from any infirmity and may not be disturbed.
5. Before proceeding further it is necessary to mention that pursuant to the advertisement published by the respondent bank auction was held and one of the bidders who emerged as successful bidder, preferred civil applications requesting that it may be allowed to join proceedings of two writ petitions viz. S.C.A. No.6144/2012 and 6145/2012 filed by present petitioner. This Court has, after hearing the learned Senior Counsel appearing for the said successful bidder and the learned counsel for original plaintiff and the opponent bank, for reasons recorded in the order, disallowed the said application under order dated 07.05.2012.
6. From the rival submissions and the record it appears that the suit pending before the Board of Nominees will require proper interpretation and construction of the deed dated 18.04.1941.
6.1. The said process, in turn, would require evidence and the Board of Nominee would be obliged to properly interpret and construct the document so as to determine the nature of the document i.e. as to whether the document is a deed of sale of the property in question or it is a mortgage deed.
7. Besides this, the Board of Nominees will also have to consider the applicability of provisions of Limitation Act in light of Section 97 of the Act and Section 29 of Limitation Act and determine as to whether the provisions under Article 61(a) of Limitation Act would be attracted and applicable in present case or not.
8. Now, so far as the provision under Order VII Rule 11(d) is concerned, it provides, inter alia, that if it appears from the statement in the plaint that the suit is barred by any law then the plaint shall be rejected.
8.1. The language used in the provision is clear. A plain reading of clause (d) of Rule 11 of Order VII makes it clear that the statement in the plaint alone should be considered to decide the issue as to whether the suit is “barred by any law” or not. Thus, the said issue should be decided only on reading of the plaint and not by looking at any other material, much less the defence or written statement or the contentions raised by the opponent. Any material other than the plaint cannot be called in aid for deciding the application requesting the Court to reject the suit.
9. In present case it is noticed from the facts and submissions by the contesting parties that the plaintiff has countered the defendant’s contention about limitation and delay in light of the provisions contained under Section 97 of the Act and contended that provisions under Limitation Act would not be applicable in present case since the special statute contains specific provision as to Limitation for taking out any proceedings under the provisions of the Act.
9.1. The said contention is raised on the premise that the document/deed dated 18.04.1941 is a sale deed and not deed of mortgage as claimed by the plaintiff and that therefore Article 61(a) or (b) of the Limitation Act would be applicable in this case.
But, the plaint describes the document/deed as deed of mortgage.
9.2. Therefore, in present case, the rival submissions would also require construction of the document in question. Whereas, to attract the provision under Order VII Rule 11(d), statement only in plaint can be considered and the defence statement or details mentioned therein cannot be considered.
9.3. However, in present case all the above mentioned aspects are required to be examined and decided by the Board of Nominees. Meaning thereby, it would not be possible to decide applicability of the provision under Order VII Rule 11(d) and/or as to whether the suit is barred by law or not, only on the basis of and only in light of the statement in the plaint.
10. On this count it would be appropriate to consider the case between Mayar (H.K.) Limited & Ors. v/s. Owners and Parties, Vessel M.V. Fortune Express & Ors. [AIR 2006 SC 1828] wherein the Apex Court, while considering the provisions under Order VII Rule 11, has observed, in para 10 and 11 that:
“10. Under Order VII Rule 11 of the Code, the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order VII Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam vs. T.V. Satyapal and Another, (1977) 4 SCC 467, this Court has held that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sethi vs. Nachhattar Singh Gill, (1982) 3 SCC 487, this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court could not act under Order VII Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order VI Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. Vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, it was held that the basic question to be decided while dealing with an application filed by the defendant under Order VII Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557, this Court has held that the trial court can exercise its powers under Order VII Rule 11 of the Code at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, this Court has culled out the legal ambit of Rule 11 of Order VII of the Code in these words:
"There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence of a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities."
11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation,fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff- appellants.”(emphasis supplied)
10.1. It is also relevant to take into account observations in the decision in case of State v/s. Gangaben Polabhai [2007 Vol. II G.L.R. 921] wherein the Court observed, in para 13, that:
”13. Section 37[3] further provides that suit is to be filed within one year and if the suit is not filed within the said period of one year, the same shall be dismissed although limitation has not been set up as a defence. The language employed in sub-section[3] is pari materia with the language employed in sub-section [3] of the Indian Limitation Act, 1963 when it provides that “although limitation has not been set up as a defence”. The law casts a duty upon the Judge or the appellate authority to dismiss the matter once it finds that the cause has been brought before the court or the Tribunal after the period of limitation. Once the limitation is provided under sub-section [3] of Section 37, then the limitation would rule the parties for all practical purposes. Section 29 of the Indian Limitation Act reads as under:-
“29. Savings.--[1] Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 [9 of 1872].
[2] Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 [inclusive] shall apply only in so far as, and to the extend to which, they are not expressly excluded by such special or local law.
[3] Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
[4] Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 [5 of 1882], may for the time being extend.”
Section 29 of the Indian Limitation Act clearly provides that where any special or local law prescribes for any suit a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 thereof shall apply as if such period were period prescribed by the Schedule. In the present case, in light of Section 29 of the Indian Limitation Act, the limitation even for declaration would stand reduced to one year and the running point/starting point of the limitation would be the date of the order of the final appellate authority. When Section 37[3] of the Code itself provides that if the suit is not brought within one year, then the same shall be dismissed although the limitation has not been set up as a defence, then the provisions contained in special law shall supersede general/common law and in case the suit is filed beyond the period of one year, then such suit would be barred under Section 37[3] of the Code. Order VII Rule 11[d] of the CPC provides that the plaint shall be rejected in a case where the suit appears from the statement in the plaint to be barred by any law. In the present matter, on the plaintiff’s own showing, it would clearly appear that the suit was filed beyond the period of one year from the date of the order passed by the final appellate authority. If such are the statements and such are the pleadings of the parties and the facts are undisputed, then there was no bar against the court in taking up the application filed under Order VII Rule 11[d] of the CPC to consider the question whether the suit appeared to be barred by any law in view of the statements made in the plaint.”
10.2. It is also relevant to mention that the views and opinion by High Courts are found to be differing on this issue. The conflict was noticed by the Apex Court while considering the matter in the case Balasaria Construction (P) Ltd. (Supra) when the Apex Court considered the judgments in the case of N.V.Srinivasa Murthy v. Mariyamma and in the case of Popat & Kotecha Property v. State Bank of India Staff Association. Therefore, the question “whether the words “barred by law” under Order VII Rule 11(d) would also include the ground that it is barred by law of limitation” was referred to Larger Bench. The Apex Court observed that the said issue was not specifically dealt with in either of the two judgments in the said two cases. The Apex Court noticed the aforesaid aspect while considering the case of Balsaria Construction (P) Ltd. (Supra) when the counsel for appellant relied on the decision in case of N.V.Srinivasa Murthy to support the preposition that plaint could be rejected if the suit is ex facie barred by limitation and the counsel for defendant relied on the decision in the case of Popat & Kotecha Property (Supra). The Apex Court also noticed that though the above mentioned issue was not decided in the said two cases, it was specifically dealt with in case of Mohan Lal Sukhedia University v. Priya Soloman (AIR 1999 Rajasthan 102) and in the case of Khaga Quthubullah v. Government of Andhra Pradesh (AIR 1995 A.P. 43) Vedapalli Surayanarayana v. Poosarla Venkata Shanker Suryanarayana [(1980) 1 An. L.T. 488] and Arjan Singh v. Union of India (AIR 1987 Delhi 165) wherein the High Courts held that plaint under Order VII Rule 11(d) cannot be rejected on the ground that it is barred by law. The Apex Court also noticed that a contrary view has been taken by Calcutta High Court in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., National Insurance Co. Ltd., Navrom Constantza, J. Patel & Co. v. National Federation of Industrial Coop. Ltd.
10.3. The Apex Court, having regard to such conflict referred the issue, as mentioned earlier, to the Larger Bench. Thereafter, while considering the case of Balsaria Construction (P) Ltd. (Supra) the Apex Court noticed that:
“6. Before the three Judge Bench, counsel for both the parties stated as follows:
“....It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case.”
7. In view of the statement made by the counsel for the parties, the Bench held that the question referred to the larger Bench was academic so far as this case is concerned and accordingly declined to decide the question. The case was sent back to the Bench for disposal on merits based on the facts of the case.
8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot he rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.”
10.4. Therefore, the Apex Court considered and decided the matter in the case of Balsaria Construction (P) Ltd. (Supra) on merits and observed that:
“8. ..........we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial Court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.”
10.5. In view of the facts of the case on hand it is also relevant to take into account the observations made by the Apex Court in the decision in case of Popat & Kotecha Property (Supra). In para 25 of the said decision the Apex Court observed, inter alia, that.
“25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. this is not so in the present case. (emphasis supplied)”
11. Thus, to attract the provision under Order-7 Rule-11(d) it should clearly emerge from the statement in the plaint as to whether the suit is “barred by any law” or not and to determine the said aspect Court cannot add or subtract anything from the plaint i.e. the statement in the plaint without addition or subtraction must show that the suit is barred by limitation or not.
11.1. If the statements in the plaint are such which give out, without taking aid of any other material, that the suit is barred by law then the provisions under Order VII Rule 11(d) would be attracted.
12. When the statements in the plaint alone do not give out that the suit is barred by law and when the objection-contention in the written statement and rival submissions call for construction of document or when the rival contentions require further investigation or adjudication by the Court, then the provision under Order VII Rule 11(d) would not be attracted in such cases since such cases do not satisfy the above mentioned primary test and requirement for applicability of the said provision.
12.1. When all the aspects mentioned hereinabove are conjointly considered it emerges that it would not be possible for the Board of Nominees to reach a definite conclusion as to whether suit is “barred by law” or not only on the basis of the statement in the plaint alone.
12.2. From the facts it appears at this stage that so as to determine whether Article 61(a) of the Limitation Act will be applicable in present case or not, the nature of the document in question i.e. whether the document in question is sale deed or a deed of mortgage, will have to be ascertained first and the decision as to whether provision under Article 61(a) would be applicable to the case or not; will, substantially, depend on the said decision.
12.3. Thus, in the facts of the case the question concerning limitation could be one of the diverse issues which the Board of Nominees may be required to decide.
13. In present case, merely the statements in the plaint would not attract the said provision, more so because they are coupled with the contention raised on strength of the provisions contained under Sections 96, 97 and 99 of the Act. It is in light of the contention raised in the written/defence statement raising objections against maintainability of the suit on the ground that it is barred by limitation in light of provisions contained under Article 61(a) or (b) that the issue against maintainability of the suit has arisen.
13.1. The petitioner has, against the said contention, claimed that in view of provision under Section 97 of the Act, the provisions under Article 61(a) or (b) would not be attracted.
13.2. It is also noticed that the issue about interpretation and construction of the document is intertwined with the issue of limitation.
13.3. Even if the learned Tribunal or the Board of Nominee were to proceed in light of Article 61(a) then also the question as to when did the right to redeem or to recover possession accrue would arise in addition to the issue as to whether the document in question is sale deed or deed of mortgage.
14. A conjoint effect of the aforesaid aspects is that only on the strength of the statements in the plaint and without bringing evidence on record, it would not be possible to hold that the suit is barred by limitation.
15. In present case, the learned Tribunal not only took into consideration the defence/written statement but even ventured into interpreting the document. This is impermissible. The learned Tribunal has, then, directed the Board of Nominees to frame and decide the issue about limitation as preliminary issue.
16. It is true that in light of the pleadings one of the important issues which would arise for decision by the Board of Nominees will be about limitation.
16.1. However, it would be one of the diverse issues and that therefore the Board of Nominees will have to proceed to cast all issues which arise from the pleadings filed by the parties and the issues so cast may include the issue about limitation.
16.2. The Board of Nominees may, thereafter, proceed, in accordance with law, to decide any issue (out of the total issues cast in the proceedings) as preliminary issue and for such purpose any of the parties to the proceedings may make appropriate application.
16.3. Ordinarily if the issue is pure question of law and if it is such which can be decided without recording evidence then it may be decided as preliminary issue.
17. From the foregoing discussion and from the facts of the case the issue about limitation seems to be connected with the issue related to the nature of document (i.e. as to whether it is a sale deed or deed of mortgage) and to decide the former, latter also will have to be simultaneously considered.
18. When the pleadings are filed the obligation is on the Court to frame issues and to decide the said issues. If any or more issues are pure questions of law and is/are such which can be decided without recording evidence then Court may consider the request to decide such issue/s as preliminary issue/s, whereas the issues, which may require evidence should, ordinarily, be tried together so that the parties may not have to lead evidence in two stages-phases.
18.1. In view of the foregoing discussion the order of the learned Tribunal remitting the case to the Board of Nominees is not disturbed, however, the direction to the Board of Nominees to decide the issue of limitation as preliminary issue is set aside and modified with clarification that the Board of Nominee shall proceed, expeditiously, to cast all issues in light of the pleadings available on record which may include the issue about limitation (depending on the pleadings filed by the parties). When the issues are cast it would be open to the concerned party to submit an application to the Board of Nominee requesting the Board of Nominee to decide the issue of limitation as preliminary issue. If such application is filed by the respondent then such application shall be expeditiously decided by the Board of Nominees on its own merits and in accordance with law. The Board of Nominee shall take appropriate independent decision in accordance with law and in light of the facts of the case and the pleadings submitted by the parties and applicable provisions and settled legal position, however without being influenced by the order passed by the learned Tribunal. The Board of Nominee shall endeavour to decide the suit as expeditiously possible and preferably within three months. The Board of Nominee shall also proceed to cast the issues expeditiously and the said process will not be deferred beyond 7 days from service of certified copy of this order.
19. With the aforesaid clarification and observations the petition is disposed of with no order as to cost.
jani (K.M.THAKER, J.)