The main legal point established in the judgment is that the determination of the question of limitation required a consideration of facts and law, and therefore, it should be decided along with other issues and not as a preliminary issue.

JUDGMENT :

Prior to dealing with the question posed by the learned counsel for the parties, few facts are required to be considered, which engage consideration in the instant writ petition.

2. The plaintiff petitioner, herein, had preferred this writ petition, whereby, by virtue of the impugned order under challenge, the issue pertaining to the limitation, i.e., issue No. 11, has been directed to be decided as a preliminary issue.

3. The sole issue of debate in this writ petition, is, as to whether the question of limitation, which constitutes as to be an ingredient of issue No. 11, could be simpliciter decided as a ‘preliminary issue’, based on the pleadings raised in the Suit or it engages consideration of facts, which could be decided by appreciating the pleadings raised in the plaint, which ought to be decided at the stage, when the other issues are decided by the learned trial Court i.e. it is required to be decided with other issues after considering evidence and facts.

4. Upon the suit being instituted, the respondents had filed their written statement and has raised a plea pertaining to the bar of limitation, and accordingly, the defendants/respondents have raised a plea by filing of an application on 13th August 2008 by invoking the provisions contained under Order 7 Rule 11, exclusively confining their plea that the suit, as instituted by the plaintiff/petitioner, would not be sustainable, because a bar of limitation would play against them this had been the only basic ground for filing application under Order 7 Rule 11 of CPC.

5. It is this question, which becomes a controversial issue to be answered by this Court!

6. When the Application under Order 7 Rule 11 was considered, that is, being paper No. 26 (ga), by the learned trial Court, the same was decided by an order dated 20th March 2009, and at the stage when the trial Court has decided the aforesaid application under Order 7 Rule 11, the Court has made the following observations:-

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7. In fact, it’s the entire interpretation of both the counsels which is foundationed upon, as to how the aforesaid paragraph, as extracted above, is to be considered for the purposes of answering the question, as to whether the issue of limitation has to be decided as a preliminary issue under Order 14 Rule 2, or it has to be decided with the other issues, because it engaged consideration of question of facts and law both.

8. The learned counsel for the petitioner contends that, if the said para, as extracted above, is taken into consideration, the learned trial Court, while deciding the Application under Order 7 Rule 11, has quite explicitly taken a view while rejecting the application; that the question of limitation, which is the prime foundation of an application under Order 7 Rule 11, is to be decided only after appreciation of facts and evidence, and the said view, as drawn by the learned trial Court, was based upon the ratio of the judgement of the Hon’ble Apex Court, as reported in 2006 (6) Supreme 44, Ramesh Bhai Desai and others Vs. Nitin Wadilal Mehta and Another which has primarily held that question of bar limitation in any suit would be engaging consideration of facts and evidences, hence should be decided with oth