J.V Gupta, J. — 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 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. Moreover, 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 in spite 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. S. Joginder Singh Shekhon…, 1985 PLR 261, Mala Rani Samanta v. Kamal Bose, 1989 (2) RLR 261, Smt. Ram kali and others v. Shoan Lal 1984 PLJ 600 and Shri Mahabir parshad died Rep. By His. L. Rs. v. The Punjab Saltpetre Refinery Private Ltd., 1985 PLJ 175. It was also contended that already more than five years have passed when the suit was originally filed and 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.
4. On the other hand the learned counsel for the defendant-respondents submitted that by the impugned order no rights of the parties have been decided and, therefore, the revision petition as such under Section 115 of the Code of Civil Procedure is not maintainable. According to the learned counsel, it was purely a procedural matter which has been decided by the trial Court in favour of defendants and no interference was called for in its revisional jurisdiction. In support of his contention, he referred Saraswati Spinning Mills v. Gheru Lal Bal Chand, 1980 PLR 536 : 1980 PLJ 572 and Vaz Forwarding Pvt. Ltd. Bombay v. Punjab Tanneries Limited, Nakodar Road, Jullundur, 1982 PLR 191.
5. As regards the maintainability of the revision petition under Section 115 of the Code of Civil Procedure is concerned, it was held by this Court in Smt. Ram Kali's case (supra) that such an order under Order 14 Rule 2 of the Code of Civil Procedure, if erroneous can be corrected in revision petition. Again in Shri Mahabir Parshad's case (supra) it was held by this Court that the issue can be treated as preliminary only which can be disposed of wholly in which no evidence was recorded. If it is a mixed question of fact and law, it could not be decided as a preliminary issue.
6. Taking into consideration the facts and circumstances of the present case: and also the fact that the defendants have taken the matter upto the Supreme Court under Section 34 of the Arbitration Act; and that it was delayed for more than three years, and that the question of limitation is mixed question of law and fact, it could not be decided as such without recording evidence. The present is a suit based on the breach of contract and, therefore, in order to decide the question of limitation certain evidence is necessary to be recorded. Moreover, it could not be disputed that the whole suit as such could not be disposed of as tarred by time even if the issue was treated as preliminary. Thus, taking into consideration the facts and circumstances of the present case, the impugned order is liable to be set aside as the trial Court has acted illegally and with material irregularity in exercise of its jurisdiction. Since the issue of limitation requires recording of evidence, and in order to avoid any it will be in the fitness of circumstances that the evidence is recorded on all the issues and the suit is finally disposed of on merits. Consequently, this petition succeeds, the impugned order is set aside and the trial court is directed to proceed with the suit expeditiously. It is further directed that the parties will lead evidence at their own responsibility, though, Dasti Summony may be given, if so desired as contemplated under October 16 Rule 7-A of the Code of Civil Procedure.
7. Since further proceedings were stayed at the time of motion hearing in this Court, the parties are directed to appear before the trial Court on 14-12-1989.
Petition accepted.