The main legal point established in the judgment is that the issue of limitation cannot be decided as a preliminary issue without recording evidence if it depends on proof of facts.

K.K. Lahoti, J.

1. The petitioner has challenged the order dated 24-11-2004 passed by Second Additional District Judge, Sagar in Civil Original Suit No. 11-A/2003, by which the Court has directed that the issues Nos. 8 and 9 in respect of non-joinder of necessary party and of limitation be decided after recording of the evidence. The trial Court recorded that both the issues relate to counter claim filed by the defendants and the defendants want to adduce evidence on both the issues. As the defendants want to adduce evidence on the issues, these issues cannot be decided as preliminary issues and directed as above.

2. Learned Counsel appearing for petitioner challenged the aforesaid order that in view of the admitted facts in respect of question of limitation it was not necessary for the trial Court to defer the decision on the preliminary issue No. 9. The issue of limitation can be decided only on the pleadings of the parties. The counter-claim filed by the defendants in respect of declaration of sale deed dated 28-3-2000 was itself barred by limitation as the said counter-claim was filed on 1-8-2003, which was beyond the limitation of three years and it was not necessary for the trial Court to defer the matter for recording evidence. It is submitted that the order passed by the trial Court in respect of issue No. 9 be set aside and the matter be remitted back to the trial Court to decide the issue No. 9 after hearing the parties.

3. Learned Counsel for respondents supported the order that the aforesaid issues cannot be decided as a preliminary issue as the defendants became aware in respect of the sale deed after 22-4-2003 on filing of the suit. Before it she was having no knowledge and this issue cannot be decided by hearing arguments and without recording evidence.

4. To the aforesaid contention Learned Counsel for petitioner submitted that in the counter-claim the defendants have not pleaded the fact that the defendants became aware in respect of the sale deed after filing of the suit. From the perusal of para 13 of the counter-claim it is apparent that the defendants were in the knowledge of the sale deed since the date of execution of sale deed. Apart from this the sale deed was executed by Janakrani in favour of plaintiff, which was in the knowledge of defendants.

5. The short question involved in this petition is whether the issue of limitation can be decided as a preliminary issue without recording evidence?

6. The question of limitation if depends of proof of facts and evidence is required, then the issues cannot be decided as preliminary issues. The Division Bench of this Court in Narendra Kumar and another vs. Firm Ram Narain and another, 1977 (11) MPWN 113 considering this question held thus :-

The suit was dismissed only on decision of issue of limitation i.e. issue No. 13. It appears that the allegations of fact made in the plaint were disputed in the written-statement and a number of issues were drawn up. It also appears from the judgment itself that issue of limitation also was such which could not be decided without going into the facts of the case; but it appears that the counsel appearing for the defendants made a concession by saying that for purpose of decision on the question of limitation it may be assumed that the facts alleged in the plaint are admitted although both the Learned Counsel appearing before the Court clearly state that the defendants did not withdraw the written statement challenging many of the facts alleged in the plaint nor give any written statement admitting the facts pertaining to the issue of limitation. But on an assumption the learned Court below went on to decide the question of limitation. Such a course, in the opinion of this Court, was not proper as the facts remained in dispute and if the Court would have held that the suit is within limitation it was bound to go into all the questions which were disputed, even such questions as would have affected the decision on the question