THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia,
Aged about 62 years,
S/o Lt. Tshering Nedup Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
Petitioner
…..
Versus
1. Shri Karma Samten Bhutia,
Aged about 48 years,
S/o Lt. Passang Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
2. Shri Karma Sonam Bhutia,
Aged about 46 years,
S/o Lt. Passang Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
3. Smt. Tashi Lhamu Bhutia,
Aged about 45 years,
D/o Lt. Passang Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
4. Shri Kulzang Gyatso Bhutia,
Aged about 38 years,
S/o Lt. Passang Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
5. Smt. Tshering Doma Bhutia,
Aged about 72 years,
W/o Lt. Sonam Wangdi Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
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W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
6. Shri Karma Loday Bhutia,
Aged about 48 years,
S/o Lt. Sonam Wangdi Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
7. Shri Wangyal Bhutia,
Aged about 42 years,
S/o Lt. Sonam Wangdi Bhutia,
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
8. Shri Dorjee Bhutia,
Aged about 41 years,
S/o Lt. Sonam Wangdi Bhutia
R/o Lower Tathangchen Gangtok,
P.O. Raj Bhawan Gangtok-737103.
9. The Government of Sikkim,
Through the Secretary,
P.H.E. Department,
Government of Sikkim,
Gangtok-737103, Sikkim.
10. The District Collector-cum-Registrar,
District Administrative Centre,
Gangtok, Sikkim.
s
…..Respondent
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Petition under Article 227 of the Constitution of India.
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Appearance:
Ms. Laxmi Chakraborty, Mr. Dewen Sharma Luitel
and Mr. Bhaichung Bhutia, Advocates for the
Petitioner.
Mr. Jorgay Namka, Senior Advocate with Ms. Rinchen
Ongmu Bhutia, Mr. Avinash Dewan and Mr. Lahang
Limboo, Advocates for the Respondent nos. 1 to 8.
Mr. S. K. Chettri, Government Advocate for
Respondent Nos. 9 & 10.
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Date of Hearing : 21.06.2024
Date of Judgment : 02.07.2024
3
W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
J U D G M E N T
Bhaskar Raj Pradhan, J.
1. This petition under Article 227 of the
Constitution of India seek to challenge the Order dated
11.04.2023 passed by the learned Senior Civil Judge,
Gangtok (The learned Trial Court) on an application filed by
the petitioner herein as (defendant no.1) under Order XIV
Rule 2 read with section 151 of the Code of Civil Procedure,
1908 (CPC) for deciding the issue framed on examination of
the pleadings i.e. whether the suit of the respondents
herein as (plaintiffs) is maintainable in law as a preliminary
issue in view of an admission made by plaintiff no.1 during
his cross examination in the trial.
2. By the impugned Order the learned Trial Court has
examined the rival submissions, the cross examination of
plaintiff no.1, the other evidence pointed out by the parties
and the judgments referred to and opined that there is no
doubt that the court has discretion to decide the question
of limitation as a preliminary issue as decided by the
Supreme Court in .
Sukhbiri Devi & Ors. vs. Union of India1
Thus, the learned Trial Court decided to take up the issue
as sought for by the defendant no.1 as a preliminary issue.
1
2022 SCC OnLine Delhi SC 1322
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W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
Having done so and examined the issue the learned Trial
Court decided the same against the defendant no.1 and in
favour of the plaintiffs. The defendant no.1 is aggrieved by
the impugned order and has approached this Court.
3. In (supra) the learned Trial Court had
Sukhbiri Devi
framed a preliminary issue on the question of limitation,
evidently, upon forming an opinion that the case may be
disposed of on an issue of law and that it warrants
postponement of settlement of other issues until after the
issue has been determined and to deal with the suit in
accordance with the decision on that issue. The said
preliminary issue was answered in the negative and
accordingly the suit was dismissed. The judgment was
challenged in an appeal which was also dismissed. The
second appeal before the High Court was also dismissed
answering the question of law against the appellant. In the
appeal before the Supreme Court three substantial
questions were determined and considered. The first
question whether the issue of limitation can be determined
as a preliminary issue under Order XIV Rule 2 (2) of the
Code of Civil Procedure, 1908 (the CPC) was answered by
holding that
“As held by the three Judge Bench in the
decision in Nusli Neville Wadia’s Case (supra) the provisions
under Order XIV Rule 2 (1) and Rule 2(2) (b) permit to deal
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W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
with and dispose of a suit in accordance with the decision
on the preliminary issue”.
4. In .2 the
Nusli Neville Wadia vs. Ivory Properties & Ors
Supreme Court held:
51. The provision has been carved out under
“
Section 9-A CPC to decide, question of jurisdiction to
entertain, at the stage of deciding the interim application
for injunction and the very purpose of enactment of the
same was that the suits were being instituted without
serving a notice under Section 80, which at the time of
initial incorporation of provisions could not have been
instituted without serving a notice of two months. There
was a bar to institute a suit. It became a practice that after
obtaining injunction, suit was allowed to be withdrawn
with liberty to file fresh suit after serving the notice. To
take care of misuse of the provisions, Section 9-A was
introduced in the year 1970 and had been reintroduced
again in 1977 to consider question of jurisdiction to
entertain at the stage of granting injunction or setting
aside. The provision has been inserted having the narrow
meaning as at the stage of granting ex parte injunction;
the question can be considered. The written statement,
set-off and counterclaim are not filed, discovery,
inspection, admission, production and summoning of the
documents stage has not reached and after the stages
described above, framing of issues takes place under
Order 14. As per Order 14 Rule 1, issues arise when a
material proposition of fact or law is affirmed by the one
party and denied by the other. The issues are framed on
the material proposition, denied by another party. There
are issues of facts and issues of law. In case specific facts
are admitted, and if the question of law arises which is
dependent upon the outcome of admitted facts, it is open
to the court to pronounce the judgment based on admitted
facts and the preliminary question of law under the
provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the
court may decide the case on a preliminary issue. It has to
pronounce the judgment on all issues. Order 14 Rule 2(2)
makes a departure and the court may decide the question
of law as to jurisdiction of the court or a bar created to the
suit by any law for the time being in force, such as under
the Limitation Act.
52. In a case, question of limitation can be decided
based on admitted facts, it can be decided as a
2 (2020) 6 SCC 557
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W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
preliminary issue under Order 14 Rule 2(2)(b). Once facts
are disputed about limitation, the determination of the
question of limitation also cannot be made under Order 14
Rule 2(2) as a preliminary issue or any other such issue of
law which requires examination of the disputed facts. In
case of dispute as to facts, is necessary to be determined
to give a finding on a question of law. Such question
cannot be decided as a preliminary issue. In a case, the
question of jurisdiction also depends upon the proof of
facts which are disputed. It cannot be decided as a
preliminary issue if the facts are disputed and the
question of law is dependent upon the outcome of the
investigation of facts, such question of law cannot be
decided as a preliminary issue, is settled proposition of
law either before the amendment of CPC and post
amendment in the year 1976.
”
5. In the present case admission was not in the
pleadings made by the i.e the plaint. Admittedly,
plaintiffs’
it was not even in the evidence on affidavit of the plaintiff
no.1. Reading of the plaint as well as the evidence on
affidavit it is clear that the plaintiffs after being furnished
information under the Right to Information Act by the Sub-
Divisional Magistrate cum-A.S.P.I.O. vide letter dated
–
13.03.2020 came to learn, for the first time, that their
ancestral property i.e. the suit land which was once owned
and recorded in the name of late Golay Tshering Bhutia
and then mutated in the name of late Dorjee Bhutia was in
fact illegally transferred and recorded in the name of
defendant no.1. During cross-examination of the plaintiff
no.1 which was evidently extensive he also stated:
It is true that on 11.02.2020 plaintiff no.4 and 6
“
had gone to the DC Office and inquired about the suit
property. It is true that I had not gone along with them.
(Witness states that during the said time, his father was
7
W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
alive). It is true that paragraph 10 of Exhibit P24/PW-2
does not specifically mention that his late father had also
approached the office of DC, Gangtok. It is not a fact that
during 2017/18, I did not approach the DC office, Gangtok
seeking information pertaining to the suit land. I cannot
say for sure but I had gone to DC office, Gangtok during
October-November 2017. It is true that I had gone to DC
office, Gangtok during December, 2016 and January
2017. It is true that I visited the DC office, Gangtok with
the sole purpose of seeking information pertaining to the
status of the suit property. It is true that during this visit, I
came to know that the suit property had already been
transferred in the name of defendant no.1 from that of late
Dorjee Bhutia. ……”
Emphasis supplied.
6. The application under Order XIV Rule 2 of the CPC
however, sought to rely upon a portion of one part of the
cross-examination as underlined above to seek the
examination of the issue of limitation as a preliminary
issue. Evidently, the issue of limitation which was sought
to be raised in the application under Order XIV Rule 2 of
the CPC was a mixed question of fact and law.
7. The learned Trial Court opined that the defendant
no.1 was seeking to rely upon selective lines from the
cross-examination of the plaintiff no.1 and on a perusal of
the cross-examination of plaintiff no.1 it would reveal that
in fact he was not sure when he visited the office of the
defendant no.3. Further on the perusal of the various
documents referred to and relied upon by the defendant
no.1 the learned Trial Court opined that neither the
purported admission nor the documents would reflect that
8
W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
it was an admission by them of having knowledge before
2017 and that there is no specific admission to that effect.
8. A perusal of Order XIV Rule 2 of the CPC makes it
clear that where issues both of law and of fact arises in the
same suit, and the court is of the opinion that the case or
any party thereof may be disposed of on an “issue of law
ue relates to (a)
only”, it may try that issue first if that iss –
the jurisdiction of the Court, or (b) a bar to the suit created
by any law for the time being enforced, and for that
purpose may, if it thinks fit, postpone the settlement of the
other issues until after that issue has been determine, and
may deal with the suit in accordance with the decision on
that issue.
9. The provision confers no jurisdiction on the court to
decide a mixed question of fact and law, unless the facts
are clear from the plaint itself.
10. In the facts of the present case it is absolutely certain
that the question determined by the learned Trial Court
could not have been determined as a preliminary issue.
Therefore, the application filed by the defendant no.1 under
Order XIV Rule 2 of the CPC was misconceived.
11. This Court is therefore, of the view that the final
determination of the question whether the suit of the
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W.P. (C) No. 19 of 2023
Phigu Tshering Bhutia vs. Karma Samten Bhutia & Ors.
plaintiff is maintainable in law by the learned Trial Court
was erroneous even thought it was at the instance of the
defendant no.1. The impugned Order dated 11.04.2023 is
set aside. The application filed by the defendant no.1 under
Order XIV Rule 2 of the CPC is rejected. The issue whether
the suit of the plaintiff is maintainable in law may be
considered along with the other issues framed and
determined in the end of the trial.
12. The application under Article 227 of the Constitution
of India is disposed of. Pending interim application also
stands disposed.
( Bhaskar Raj Pradhan )
Judge
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