Kishore Kumar Mandal, J.—Defendant 2nd party is the purchaser of the subject land from Defendant 1st party. In a suit filed by the plaintiff-respondent 1st set, vide Title Suit No. 148 of 2009 for specific performance of contract, they were arrayed as defendants. An application filed under Order 14, Rule 2 of the Code of Civil Procedure (for short ‘CPC’) by the defendant was considered and rejected by the learned Sub-Judge-I, Katihar on 20.1.2011. Assailing the aforesaid order, the present writ petition is filed.

2. I have heard Sri S.S. Dwivedi, Senior Counsel in support of the application and Sri Najib Ahmad for the contesting plaintiff-respondent.

3. The case of the plaintiff-respondent is that defendant no.1 agreed to sell the suit land in favour of the plaintiff for a value of Rs. 2,25,000/- and received the part consideration amount under the baibayana executed on 13.05.2005. As the plaintiff was looking after the properties of the defendant, he was allowed to construct house thereon. It was contemplated in the agreement (baibayana) that the purchaser would pay the entire consideration money and get the deed of conveyance executed within one year from the date of execution of the baibayana. On 03.06.2006, a bank draft towards the consideration amount was drawn in favour of the plaintiff which was handed over to the defendant seller and encashed by him on 13.06.2006. Even thereafter, the request of the plaintiff to execute the sale deed was refused by the defendant seller. Thereafter, on 29.01.2007, a bank draft for a sum of Rs.10,000/- was tendered to the defendant which was refused. Again on 19th February, 2009, a bank draft in the sum of Rs.50,000/- drawn in the name of the defendant 1st party was tendered with a request to receive the same and execute the sale deed which was denied by the defendant. On 15.06.2009, it came to the notice of the plaintiff that the defendant 1st party sold the suit land in favour of the petitioner-defendant 2nd party by a sale deed 21.03.2009. Promptly thereafter, the suit was filed on 04.07.2009 in which an application under Order 14, Rule 2 of the CPC was filed by the defendant-petitioner for framing a preliminary issue with regard to the maintainability of the suit and to answer the same. According to the defendant-petitioner, the suit was barred by limitation having been filed beyond 03 years of the extended time i.e. 13.06.2006. The plaintiff-respondent filed rejoinder thereto. The Trial Court, on a consideration of the materials on record, rejected the said application filed by the defendant-petitioner.

4. Mr. Dwivedi, appearing for the petitioner, has drawn attention of the Court to Section 3 of the Limitation Act in order to contend that a duty is cast on the Court to consider the question of limitation even if not raised. Section 5 of the Limitation Act shall not be applicable in suits. Although the question of limitation is a mixed question of fact and law but in this case the facts are not much in dispute and, as such, the Trial Court ought to have allowed the application and framed the issue of limitation as a preliminary issue and answer the same. In not doing so, the Trial Court has erred in law. He has further submitted that the period of three years in the case shall be counted from 13.06.2006 when, as per the plaint, the defendant encashed the demand draft tendered by the plaintiff towards part of the consideration money. The suit ought to have been filed within one year therefrom but the same was filed on 4.7.2009. In support of his contention, he has relied on 2012 (4) PLJR 168 (Amiteshwar Dayal v. Shambhu Dayal), (paragraph 29 and 31).

5. Mr. Ahmad appearing for respondent nos. 1 and 2 (plaintiffs), in contra, supported the impugned order. It is argued, under the impugned order, the trial Court, on a consideration of the rival pleadings, and rightly so, that the issue of limitation is a mixed question of fact and law. The issue of limitation shall be considere