JUDGMENT - A.M. KHANWILKAR, J.:---Rule. By consent, Rule made returnable forthwith. Heard both the sides.

2. This revision application takes exception to the order passed by the 4th Joint Civil Judge, Senior Division, Nagpur, below Exhibit 34 in Special Civil Suit No. 170 of 1999.

3. Briefly stated, the respondent No. 1 has filed suit for specific performance of contract dated 7th November, 1994. When the applicant was served with the notice of the said suit, he appeared before the Court and on the second date, moved an application being Exhibit 34, praying that the preliminary issue be framed with regard to the question that the suit is barred by limitation. By the impugned order, the trial Court rejected the said application by concluding that issue of limitation raised by the applicant is a mixed question of law and fact and cannot be decided at this stage.

4. The aforesaid view has been assailed before this Court by the present revision application. The learned Counsel for the applicant submits that the objection raised on behalf of the applicant could be decided on the basis of the pleadings before the Court and even assuming that it was a mixed question of fact and law, it was obligatory on the Court to frame the said question as preliminary issue and decide the same before passing any further orders in the matter. In support of the submissions, reliance has been placed on the decision of the Division Bench of this Court reported in (B. Maniappan v. District Magistrate, District Collector, Vellore)1, 1999(1) Civil Law Journal page 723 to contend that the purport of the Maharashtra Amendment of section 9-A of the Code of Civil Procedure, 1908 has been interpreted to mean that it is obligatory on the Court to frame preliminary issue and decide the same. According to this judgment, if the issue is a pure question of law, then the same be decided without recording evidence, but if it is a mixed question of law and fact, then parties should be permitted to adduce evidence and the same can be decided on the basis of the evidence before the Court.

5. On the other hand, the learned Counsel for the respondent No. 1 contends that the fact that the suit is barred by limitation cannot be a question touching upon the jurisdiction of the Court. In support of his submissions, reliance has been placed on the decision of the Apex Court reported in (Budhia Swain v. Gopinath Deband)2, A.I.R. 1999 Supreme Court 2089 para 14 as well as (A.I.R. 1964 Supreme Court 907)3. In addition to the said decisions, reliance has been placed on the decision reported in (Maharashtra State Warehousing Corporation Ltd., Pune v. Bhujang Krishnaji Kohale)4, 1999(3) Mh.L.J. 652.

The learned Counsel for the respondent No. 1 further contends that jurisdiction to entertain the suit will have to be given restricted meaning that the suit is either barred due to pecuniary jurisdiction, territorial jurisdiciton or barred by specific provisions of law.

6. Before considering the rival submissions, it would be appropriate to reproduce the relevant provisions that will have to be considered in this case. Section 9 of the Code of Civil Procedure, 1908 reads thus :

"9. Courts to try all civil suits unless barred.---The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred".

There is Maharashtra amendment to section 9 by virtue of which section 9-A has been introduced, which reads thus :

"9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issued to be decided by the Court as a preliminary issue.---(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a Receiver or otherwise, made

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