The court emphasized that the issue of limitation, including the possibility of condoning the delay under Section 5 of the Limitation Act, involves a mixed question of fact and law and should be considered in accordance with law, without deciding it as a preliminary issue.

P. K. TRIPATHY, J.

( 1 )

( 2 ) THIS revision petition is disposed of in the following manner.

( 3 ) DEFENDANT No. 2 in Money Suit No. 2 of 1999 of the Court of Addl. Civil Judge (Jr. Division), Baramba is the petitioner and plaintiff is the opposite party No. 1 in this revision. That is a suit with the claim of damage on the ground of malicious prosecution in S. T. No. 415 of 1997 of the Court of Asstt. Sessions Judge, Athagarh.

( 4 ) IT is not disputed at the Bar that defendant No. 1 was the informant and defendant No. 2 was the Investigating Officer of Baramba P. S. Case No. 24 of 1993. Defendant No. 2 investigated into the case and submitted charge-sheet for the offences, inter alia, punishable under Section 436, i. P. C. , and as a consequence the concerned c. R. Case No. 24 of 1993 was committed to the Court of Session, and learned Assistant sessions Judge, Athagarh registered the case as S. T. No. 415 of 1997, conducted the trial and delivered the judgment on 15-7-1998 acquitting the plaintiff who was the accused in that case. After acquittal plaintiff has instituted the suit for malicious prosecution claiming damage to the tune of Rs. 10,000/- (ten thousands ). It appears from the certified copy of the order dated 12-12- 2002 of the learned Civil Judge (Jr. Division), Baramba that the suit was filed on 12-10-1999, i. e. , after lapse of one year and three months from the date of the aforesaid order of acquittal. After entering appearance in the suit defendant No. 2 filed written statement, inter alia, challenging to the maintainability of the suit stating that it is barred by law of limitation. After filing of that written statement issues were settled and issue No. 3 reads "is the suit barred by law of limitation". . On 5-7-2001 defendant No. 2 filed an application to dispose of the above quoted issue as preliminary issue and to dispose of the suit accordingly. Plaintiff contested to that application and claimed for disposal of the suit on all the issues in terms of the provision in Order 14, Rule 2 (2), C. P. C. After hearing the parties and referring to the case of Puranda Behera v. Dr. Narayan shanakr Behera, 1991 (1) Orissa LR 455. learned Civil Judge (Jr. Division) rejected the application on the ground that the issue involves a mixed question of fact and law inasmuch as plaintitf has also prayed to condone the delay under Section 5 of the limitation Act.

( 5 ) LEARNED Counsel for the petitioner while referring to the provision in Order 14, rule 2, C. P. C. and the ratio in the case of puranda Behera (1991 (1) Orissa LR 455) (supra) also refers to a Division Bench decision of this Court in the case of madhabananda Ray v. M/s. Spencer and company Ltd. (1987) 64 Cut LT 560 : (AIR 1988 Orissa 35) argues that in the present case the question of limitation being considerable on mere perusal of the averment in the plaint and the provision in Article 74 of the Limitation Act, 1963 and since no factual investigation or recording of evidence is necessary, therefore, the Court below has failed to exercise the jurisdiction vested in him in accordance with law. He further argues that the provision in Section 5 of the limitation Act is not applicable to condone delay for institution of a suit and therefore learned Civil Judge (Jr. Division) should have decided the aforesaid Issue No. 3 on the question of limitation as a preliminary issue. Accordingly he argues to set aside the impugned order and to direct the Court below to consider that issue as a preliminary issue.

( 6 ) IN the case of Puranda Behera (1991 (1) Orissa LR 455) (supra) a similar matter came for consideration and this Court found the conduct of the Presiding Officer in referring to certain statements on record for deciding that issue as an investigation not permissible and accordingly set aside the order passed by the trial Court in deciding the preliminary issue.

( 7 ) IN the case of Madhabananda Ray (AIR 1988 Orissa 35) (supra), a Division Bench of this