1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 278 OF 2010 (Omprakash Kisanrao Tade vs. Sau. Ratnamala Shrikrishna Paighan & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 21, 2010. Heard finally Shri Sirpurkar, learned counsel for the petitioner and Shri Bisen, learned counsel for respondent No.1. The trial Court framed issues at Sr. Nos. 3A, 3B and 3C and it was agreed to decide them as preliminary issues. Accordingly, opportunity to lead evidence was given to the parties. The respondent – plaintiff led his evidence, petitioner defendant filed pursis and refused to tender any evidence. The trial Court has by impugned order, after evaluating that evidence, postponed consideration of preliminary issues after recording of evidence on other issues. This order dated 12.11.2009 is challenged in present writ petition. Shri Sirpurkar, learned counsel contends that as evidence has been laid on record, it was not open for the trial Court to postpone consideration by observing that the question of fact was also involved. Shri Bisen, learned counsel for respondent No.1 states that trial Court in its discretion has left the 2 issue open for consideration at the stage of final arguments. The preliminary issues are regarding limitation, regarding valuation of suit and maintainability of suit because of provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as Holdings Act). After the issues were framed and taken up for deciding preliminary issues, the respondent – plaintiff led her evidence and the petitioner – defendant did not find it necessary to lead evidence and accordingly placed pursis on record. In this situation, the theory of mixed question of law and fact is not attracted. The evidence on record needs to be evaluated to find out whether the plaintiff proved that suit was within limitation or it was properly evaluated and whether the suit was barred because of any provision in the Holdings Act. The postponement of these issues by the trial Court is without jurisdiction and contrary to its earlier orders. The said order passed below 34 on 12.11.2009 is, therefore, set aside. The trial Court to pass appropriate orders in accordance with law after evaluating evidence on merits and decide the three issues framed as preliminary issues. Writ Petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.