Case Note & Summary
The petitioners, defendants in a civil suit, challenged an order dated 9.6.2011 passed by the 5th Joint Civil Judge, Junior Division, Nasik, framing a preliminary issue of limitation under Section 9-A of the Code of Civil Procedure, 1908 (CPC) in Regular Civil Suit No. 45 of 2011. The suit was filed by the respondents (plaintiffs) seeking a declaration that a sale deed dated 2.8.1965 was illegal and not binding on them, and for cancellation of the same, along with a permanent injunction restraining the defendants from forcibly dispossessing them from the suit property. The petitioners argued that even if the suit was barred by limitation regarding the declaration, the relief of permanent injunction would survive, and thus the preliminary issue could not dispose of the entire suit. The respondents contended that the injunction relief was consequential to the declaration, and if the declaration was barred, the injunction could not stand alone. The High Court analyzed the nature of the reliefs and held that the main relief was the declaration and cancellation of the sale deed, and the injunction was merely consequential. Since the suit was filed in 2011 challenging a 1965 sale deed, it was prima facie barred by limitation under Article 58 of the Limitation Act, 1963. The court noted that Section 9-A CPC allows framing of a preliminary issue on jurisdiction, which includes limitation, if it can dispose of the suit entirely. As the declaration relief was the primary relief, if it failed on limitation, the consequential injunction could not survive, and the entire suit would be disposed of. Therefore, the trial court's order was justified. The High Court dismissed the writ petition, upholding the framing of the preliminary issue.
Headnote
A) Civil Procedure - Preliminary Issue - Section 9-A CPC - Limitation - The trial court framed a preliminary issue of limitation under Section 9-A CPC in a suit seeking declaration that a sale deed was illegal and for permanent injunction. The High Court held that since the main relief of declaration was barred by limitation, the consequential relief of injunction could not survive, and thus the preliminary issue could dispose of the entire suit. The court upheld the order framing the preliminary issue. (Paras 1-10)
Issue of Consideration
Whether the trial court was justified in framing a preliminary issue of limitation under Section 9-A of the Code of Civil Procedure, 1908, when the suit also seeks a consequential relief of permanent injunction.
Final Decision
The High Court dismissed the writ petition, upholding the order of the trial court framing the preliminary issue of limitation under Section 9-A CPC.
Law Points
- Section 9-A of CPC allows framing of preliminary issue regarding jurisdiction
- including limitation
- if it can dispose of the suit entirely
- Limitation is a jurisdictional issue
- Consequential relief depends on main relief.
