IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT HYDERABAD WEDNESDAY, THE 09TH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4242 OF 2010 Between:- C.Damodhar Reddy …Petitioner A n d Smt.Shakuntala Devi and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4242 OF 2010 ORDER: This civil revision petition is directed against the order dated 31-08-2010 in I.A.No.233 of 2010 in O.S.No.2 of 2002, on the file of the Senior Civil Judge, Nirmal, wherein the said application filed by the petitioner herein, seeking rejection of the plaint under Order VII Rule 11 CPC, was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the records. 3. The first respondent herein filed the suit against the petitioner/D-1 and others for declaration that the plaintiff is entitled to one-third share in the suit schedule property and for effecting partition of the same and delivery of separate possession. The defendant filed written statement contesting the suit. Necessary issues were settled. While the trial of the suit was in progress, the petitioner/D-1 filed an application in I.A.No.233 of 2010 under Order VII Rule 11 CPC seeking rejection of the plaint that the suit is barred by limitation. By the impugned order dated 31-08-2010, the learned Senior Civil Judge dismissed the said application in the following terms: “Counter not filed. Petitioner called absent. No representation. This partition suit is of the year 2002, and it is at part heard stage. Now at this stage, the question of limitation cannot be raised any plaint rejected. The petition is devoid of any merits. It is dismissed.” The above order discloses that on that day the petitioner/D-1 was absent and no representation was made and counter was also not filed by the plaintiff. It appears that the petition was dismissed because the suit was at part heard stage. 4. The petitioner/D-1 seeks rejection of the plaint on the ground of limitation. It is well settled that the limitation is mixed question of fact and law that has to be decided on evidence. 5. In RAMESH B.DESAI AND ORS. V. BIPIN VADILAL MEHTA AND ORS[1], the Apex Court held that the plea of limitation cannot be decided as abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact and the plea of limitation is a mixed question of law and fact. 6. The learned counsel for the petitioner/D-1 would submit that a perusal of the plaint discloses that the suit is barred by limitation in view of the plea of prior partition. Inasmuch as the suit is at a part-heard stage and the trial is in progress, it is considered neither just nor prudent to enter into the merits of the rival contentions of parties on various questions of fact. It is open to the petitioner/D-1 to raise the question of limitation also at the time of trial. Filing of the present application about eight years after filing of the suit and seeking rejection of the plaint at this stage when the trial is in progress, is only to drag on the proceedings. Hence, it is considered that the impugned order does not call for any interference. The learned Senior Civil Judge, Nirmal is directed to dispose of the suit within a period of four months from the date of receipt of a copy of this order, having regard to the fact that the suit is of the year 2002. 7. In the result, the civil revision petition is disposed of accordingly with the above direction. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 09th February, 2011 Lrkm. [1] AIR 2006 sc 3672