Case Note & Summary
The appellant, Siddarai Basavant Padagal, filed a suit for permanent injunction in O.S.No.1148/2008 before the IV Additional Civil Judge & JMFC, Belgaum, which was later converted into a suit for declaration of title. The defendant filed a written statement raising the issue of limitation. The trial court framed a preliminary issue on limitation under Order 14 Rule 2 CPC and, after hearing the parties, dismissed the suit as barred by limitation on 21.06.2010. The plaintiff appealed to the II Additional Senior Civil Judge, Belgaum in R.A.No.74/2010. The appellate court, without deciding the preliminary issue of limitation, set aside the trial court's judgment and remanded the suit for fresh disposal. The appellant (original defendant) challenged this remand order in the present miscellaneous second appeal under Order 43 Rule 1(u) CPC. The High Court held that the lower appellate court erred in remanding the suit without first deciding the preliminary issue of limitation. The court observed that the issue of limitation is a jurisdictional question that must be decided before proceeding with the merits. The High Court allowed the appeal, set aside the remand order, and directed the lower appellate court to decide the preliminary issue of limitation afresh in accordance with law.
Headnote
A) Civil Procedure - Remand Order - Order 43 Rule 1(u) CPC - Appeal against remand - The lower appellate court set aside the trial court's decree and remanded the suit for fresh disposal without deciding the preliminary issue of limitation framed under Order 14 Rule 2 CPC - Held that the appellate court ought to have decided the limitation issue first before ordering remand, as limitation is a jurisdictional question (Paras 1-5). B) Limitation Act - Preliminary Issue - Section 3 of Limitation Act, 1963 - Suit for declaration and injunction - The trial court had framed a preliminary issue on limitation and dismissed the suit as barred by limitation - The appellate court remanded the matter without adjudicating the limitation issue - Held that the appellate court must decide the preliminary issue of limitation before remanding, as it goes to the root of the maintainability of the suit (Paras 2-5).
Issue of Consideration
Whether the lower appellate court was justified in remanding the suit without first deciding the preliminary issue of limitation as required under Order 14 Rule 2 CPC.
Final Decision
The appeal is allowed. The order of remand passed by the II Additional Senior Civil Judge, Belgaum in R.A.No.74/2010 dated 21.01.2013 is set aside. The lower appellate court is directed to decide the preliminary issue of limitation afresh in accordance with law.
Law Points
- Order 43 Rule 1(u) CPC
- Order 14 Rule 2 CPC
- Section 3 of Limitation Act
- 1963
- Remand order
- Preliminary issue
- Limitation
