The document discusses whether limitation and mixed questions of law and fact can be decided as preliminary issues under Order XIV Rule 2 of the Code of Civil Procedure. It notes that the Supreme Court has held that mixed questions of law and fact requiring evidence cannot be tried as preliminary issues. While limitation can be decided as a preliminary issue if it involves only a question of law, if the starting point of limitation depends on factual determination, it cannot be separated from facts and decided in advance. The determination of limitation as a preliminary issue is not permitted if it is a mixed question of law and fact.

1. LIMITATION AS A PRELIMINARY
ISSUE
INTRODUCTION
A statute of limitations is a time restriction set by law within which a lawsuit, appeal, or
application must be filed, after which it will be dismissed. Even though limitation has not been

2. raised as a defence, Section 31 of the Limitation Act of 1963 states that any suit, appeal, or
application filed after the stipulated term, i.e. the period of limitation, will be dismissed. A claim
that seems from the statement in the plaint to be barred by any statute, as the case may be
under Section 3 of the Limitation Act, shall be rejected, according to Rule 11 (d) of the Civil
Procedure Code, 1908 (hereinafter referred to as Code).
● A preliminary issue is a separate element of a dispute that has the potential to
definitively resolve the claim, or a significant portion of the claim, or otherwise
significantly reduce the scope and costs of the litigation. The framing of
preliminary problems is dealt with in Rule 2 of Order XIV of the Code3. It states
that the Court will make a decision on all issues: -
● (1) Notwithstanding that a case may be decided on a preliminary issue, the Court
must render judgement on all issues, pursuant to the rules of Sub-rule
(2) Where issues of law and fact arise in the same suit, and the Court believes that the case or
any part of it can be decided on an issue of law alone, it may try that issue first if that issue
relates to (a) the Court's jurisdiction, or (b) a bar to the suit created by any law currently in force,
and may, if it thinks fit, postpone the settlement of the other issues until after that issue has
been decided, and may defer the resolution of the other issues until
The purpose of this blog is to examine the nature of the restriction question and whether it is a
question of limitation.
CAN MIXED QUESTIONS OF LAW AND FACTS BE DECIDED AS
PRELIMINARY ISSUE?

3. Section 64 of the Code of Civil Procedure Code (Amendment) Act, 19764 replaced Rule 2 of
Order XIV of the Code. Prior to the amendment, the rule read as follows: Where issues of law
and fact arise in the same suit, and the Court believes that the case or any part of it can be
decided solely on the issues of law, it shall try those issues first, and may, if it thinks fit,
postpone the resolution of the issues of fact until after the issues of law have been resolved.
In the case of Major S.S. Khanna vs. Brig. F.J. Dillon6 (hereinafter referred to as Major SS
Khanna Case), the provisions of this rule were brought before the Apex Court for consideration
in 1964, where it was held that the jurisdiction to try issues of law apart from issues of fact may
be exercised only where the court is of the opinion that the entire suit may be disposed of on
the issues of law alone, but it is important to note that the Code confer It went on to say that, in
most cases, the Court will decide all of the issues in a case, and it will do so in a timely manner.
The provisions of this rule were brought before the Apex Court for consideration in the case of
Major S.S. Khanna vs. Brig. F.J. Dillon6 (hereinafter referred to as Major SS Khanna Case) in
1964, where it was held that the jurisdiction to try issues of law apart from issues of fact may be
exercised only where the court is of the opinion that the entire suit may be disposed of on the
issues of law alone, but it is important to note that the Code confer It went on to clarify that, in
most situations, the Court will resolve all of the issues in a case within a reasonable amount of
time.
Though there has been a slight amendment in the language of Order XIV, Rule2 Code of Civil
Procedure by the amending Act, 1976 but the principleenunciated in decision in Major SS
Khanna Case still holds good with respect to the principle that the Code confers no jurisdiction
upon thecourt to try a suit on mixed issues of law and fact as a preliminary issue andwhere the
decision on issue of law depends upon decision of fact, it cannotbe tried as a preliminary issue.

5. In Ramdayal Umraomal vs. Pannalal Jagannathji7 , a Full Bench of Madhya Pradesh High
Court has observed that under Order XIV, Rule 2, mixed questions of law and fact requiring
recording of evidence cannot be tried as a preliminary issue.
The Apex Court in the matter of Ramesh B. Desai and Ors. vs. *Bipin Vadilal Mehtaand Ors.*8
(hereinafter referred to as Ramesh Desai Case) held that in the case of a disputed question of
fact, the question of limitation cannot be decided as apreliminary issue without a decision on
facts based on the evidence that has to beadduced by the parties. The Court has no jurisdiction
Under Order XIV, Rule 2 of the Code todecide a mixed question of law and fact as a preliminary
issue.
CAN LIMITATION BE DECIDED AS A PRELIMINARY ISSUE?

6. The Apex Court held in Nusli Neville Wadia vs. Ivory Properties and Ors.9 (hereinafter referred
to as Nusli Neville Wadia Case) that a Court may reject a plaint barred by limitation under Order
VII, Rule 11(d) of the Code where the plaint averment itself indicates the cause of action to be
barred by limitation and no further evidence is required to adjudicate the issue.
In the case of Narne Rama Murthy vs. Ravula Somasundaram and Ors.10, the Supreme Court
held that even if it is clear from the plaint averment that the claim is barred by limitation, it can
still be considered as a preliminary issue even if no plea of limitation has been submitted.
In the Ramesh Desai Case11, it was said that the starting point of limitation must be determined
based on the facts of each case. Under Order VII, Rule 11(d) of the Code, a plea of limitation
cannot be evaluated as an abstract principle of law separated from the circumstances for the
purpose of dismissing the plaint. As previously stated, a mixed question of law and facts cannot

7. be addressed as a preliminary matter; thus, such questions of limitation should not be decided
in advance. The Apex Court reinforced this in the case of Satti Paradesi Samadhi and Pillayar
Temple vs. M. Sankuntala (Dead) through Legal Representatives and Ors.12, where it stated
that issues of limitation that require an investigation into the facts cannot be tried as a civil
action.
a preliminary matter, and has reaffirmed that mixed legal and factual concerns cannot be
resolved as a preliminary issue.
As a result, if the question of limitation is merely a question of law and not a combined question
of law and fact, the court is free to consider it as a preliminary issue by recording evidence.
Notes
1Section 3, Limitation Act, 1963
2Rule 11(d), Order VII, Civil Procedure Code, 1908
3Rule 2, order XIV, Civil Procedure Code, 1908
4Section 64, Civil Procedure Code (Amendment) Act, 1976
5Rule 2, Order XIV, Civil procedure Code, 1908 ( Prior to 1976 Amendment)
6AIR 1964 SC 497
71979 M.P.L.J. 736
8Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors., (2006) 5 SCC 638
9AIR 2019 SC 5125
10(2005) 6 SCC 614
11Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta and Ors (Supra)
12(2015) 5 SCC 674