- (1.) THIS petition is directed against the order dated 21 4-1988 whereby the issue with regard to limitation was decided to be treated as preliminary.
(2.) THE plaintiff- petitioner filed this suit for recovery of Rs. 1, 80,918. 20 on 24-5-1984 Earlier the defendants filed an application under Section 34 of the Arbitration Act for staying the proceedings in this suit. The matter was taken up to the Supreme Court but the defendants failed in that attempt. The written statement was filed in December 1987. One of the issues framed by the trial Court was as to whether the suit is within limitation. The defendants moved an application that the said issue be treated as preliminary as according to the defendants, the suit was obviously barred by time. The said application was contested on behalf of the plaintiff and it was contended that the said issue was not purely an issue of law and therefore, could not be decided without taking evidence The trial Court came to the conclusion that the case can be disposed of on issue No. 4 which relates to limitation and no mixed question of fact and law is involved Consequently, the said application was allowed and it was directed that the said issue be treated as preliminary.
(3.) THE learned counsel for the plaintiff-petitioner submitted that the question of limitation is a mixed question of law and fact and the said issue could not be decided unless evidence was recorded. More- over, argued the learned counsel, the entire suit could not be disposed of even if the said issue is decided in favour of the defendants and, therefore, the suit will still continue inspite of the decision of that issue. According to the learned counsel the suit is based on the breach of contract and, therefore the issue of limitation could only be decided after the evidence is recorded. In support of his contention, he referred to Daljit Singh v. Joginder Singh Shekhon, (1985-1) 87 P L. R. 61. Mala Rani Samanta v. Kamal Bose 1989 (2) R. L. R. 261. , Smt. Ram Kali and Ors. v. Sohan Lal 1984 P. L. J. 600. and Shri Mahabir Parsad died Rep. By his L. Rs v. The Punjab Saltpetre Refinery Private Ltd. 1985 P. L. J. 175. It was also contended that already more than five years have passed when the suit was originally filed and the whole efforts on the part of the defendants are to delay the proceedings on one reason or the other. It is a fit case where all the issues be decided together so that the controversy between the parties is finally settled.;