C.R. NO. 1557 of 2011 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 1557 of 2011 Date of Decision: March 29, 2011 Anil Chaudhary …..Appellant Vs. Kailash Chander Gupta and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Harkesh Manuja, Advocate for the appellant. -.- M.M.S. BEDI, J. (ORAL) This revision petition has been preferred under Article 227 of the Constitution of India against the orders dated January 17, 2011 deciding an issue of limitation on the basis of prima facie evidence in favour of plaintiff- respondents safeguarding the rights of the defendant- petitioner by observing in the order that nothing in the order shall preclude the defendants from agitating the point of limitation at final stage of the suit when the parties lead entire evidence in support of their respective claims. C.R. NO. 1557 of 2011 [2] The circumstances which led to the framing of preliminary issue are required to be taken into consideration for adjudication of this revision petition. The plaintiff- respondents had filed a suit for possession by way of specific performance of an agreement of sale on September 1, 2001. The plaintiff- respondents had pleaded that the earnest money and the money towards final consideration had been paid vide different receipts dated December 30, 2001, March 15, 2002 and June 28, 2002 allegedly executed by defendant- Ravi Kumar Azad, non-petitioner. An application was filed by the defendant- petitioner under Order 11 Rule 15 CPC for inspection/ production of the documents besides an application under Order 7 Rule 11 CPC for dismissal of the suit on the ground that suit was barred by law of limitation. While deciding the applications under Order 11 Rule 15 CPC and Order 7 Rule 11 CPC, the trial Court vide order dated December 20, 2010 framed the following preliminary issue:- “i) Whether the suit has been filed within time? OPParties” Without expression of any opinion on the validity of the order, treating the abovesaid issue as preliminary issue, it is sufficient to observe here that as per provisions of Order 14 Rule 2 CPC, a Court is required to pronounce judgment on all the issues except in a case which could be disposed of on preliminary issue. A preliminary issue, as per Order 14 Rule 2 (2) CPC could be an issue which is an issue of law only and where a suit could be disposed of on that issue of law. The issue of limitation in the circumstances of the present case is a mixed issue of law and fact. The trial C.R. NO. 1557 of 2011 [3] Court in an endeavour to adjudicate the issue of limitation permitted both the parties to produce the evidence. The main grievance of the counsel for the petitioner is that the receipt dated June 28, 2002 by virtue of which the extension of limitation had been sought has not been proved in accordance with law and has been merely marked as Mark ‘C’ alleged to have been executed by vendor Ravi Kumar, who has since died. The trial Court on the basis of the evidence produced formed opinion that since the time is not the essence of the contract and the period of limitation stood extended by virtue of a document i.e. receipt dated June 28, 2002, the preliminary issue was required to be decided in favour of the plaintiffs but the rights of the defendant- petitioner have been safeguarded taking into consideration the circumstances of the case by observing that the defendants will not be precluded from agitating the point of limitation at final stage of the suit by leading entire evidence in support of their respective claims. Since the defendant- petitioner had insisted for dismissal of the suit by filing an application under Order 7 Rule 1 CPC claiming that the suit was barred and thereafter sought framing of preliminary issue, the trial Court in its wisdom had framed preliminary issue which was not a pure question of law but involved mixed question of law and facts. I have considered the contention of counsel for the petitioner that the trial Court was not competent to look into the evidentiary value of the documents while deciding the issue but I find no force in the same. The Court has got an ample jurisdiction even to examine the witnesses or the C.R. NO. 1557 of 2011 [4] documents even before framing the issues as per the provisions of Order 14 Rule 4 CPC. Since the issue of limitation in the present case could not have been treated as a pure question of law, therefore, the trial Court taking into consideration the spirit of order 14 Rule 2 CPC which requires a Court to pronounce the judgment on all the issues has safeguarded the interest of defendant- petitioner. It is observed that in case the plaintiff - respondents are not able to prove the receipt dated June 28, 2002 having the affect of extension of limitation, it will be open to the trial Court to re-determine the issue of limitation which in the circumstances of the present case is apparently more of a question of fact than a question of law to be adjudicated at final stage. In view of the above circumstances, I do not find any ground to interfere in the well reasoned order which is in consonance with the spirit of provisions of CPC. Dismissed. March 29, 2011 (M.M.S.BEDI) sanjay JUDGE