Issues that are mixed questions of fact and law and require oral and documentary evidence cannot be tried as preliminary issues.

Having regard to the nature and scope of consideration involved both in the Civil Miscellaneous Petitions and the main revision, a date has been fixed for the hearing of both the petitions by an order dated 19-12-1994. Hence, both are taken up together for hearing. The above revision has been filed against the order of the learned 3rd Additional Subordinate Judge, Coimbatore, dated 21. 1994 in I.A.No.9 of 1994 in O.S.8 of 1985, wherein the application filed by the second defendant (defendant) in the suit came to be rejected. In the said application filed under Section 151 of the Civil Procedure Code, read with Section 125 of Companies Act, the second defendant sought for treating the issue regarding limitation and the sale of shares, as preliminary issue and dispose them of as such before finally adjudicating the suit.

2. In the affidavit filed in support of the said application, it was stated that the suit by the plaintiff was for the recovery of Rs.2,96,87,614/-, that the plaintiff was not entitled to the suit claim, since the plaintiff has committed breach of trust without sufficient considerations on account of selling the shares of the company held in Revahi CP Equipment limited at a very low price without sanction from the court, especially during the pendency of the lis and that the acknowledgment by signing the confirmation of statement will not have the effect of the renewal of the original pronote and the confirmatory statement will not give a cause of action making the suit claim viable under Section 125 of the Companies Act and that the suit claim itself is barred by limitation. In the light of the above, the issues pertaining to the above contentions were sought to be got tried as preliminary issues. It is at the time of hearing while reiterating the above stand, the learned counsel for the petitioner also contended that if the issues were not tried as preliminary issues, grave injustice will be caused to the second respondent and that the plaintiff would be placed in a position, giving an unreasonable upper hand against the second defendant. The application was opposed by the plaintiff by filing a counter. It was also contended that neither of the issues sought to be tried as preliminary issues, could be decided as pure questions of law, on the basis of pleadings without going into the evidence and facts of the case and that the object of the petitioner was only to delay the completion of the trial in which the plaintiffs evidence was already over and the petitioner has taken more than once adjournments to examine himself. The Court below by the order under challenge in this revision has rejected the application holding that the issues can be tried and disposed of only on the basis of the oral and documentary evidence also and not merely on the basis of submission of legal issues and that therefore there was no justification in seeking the Court to decide the issues as preliminary issues. Hence the above revision.

.3. The learned counsel for the petitioner while reiterating the stand taken in the grounds made in the Memorandum of Grounds, contended that apart from the plea of limitation which had to be adjudicated as a preliminary issue, the issue relating to the legality, validity and propriety of the sale of the shares would help, in case the second defendant is able to substantiate his claim, to set off the real sale market value of the shares as against the suit claim. The learned counsel also contended that according to them, the real sale market value of the shares would be about Rs.24 crores as against the suit claim of Rs. 2 crores and odd and that it is all the more necessary for the reason that the plaintiff has chosen to sell the shares belonging to the second defendant during the pendency of the suit without even obtaining the orders or directions of this court, to the detriment of the second defendant. The learned counsel further contended that there is ample power and authority in the t