Civil Revision No. 5203 of 2008 (1) In the High Court of Punjab & Haryana at Chandigarh Civil Revision No. 5203 of 2008 (O&M) Date of decision : 5.3.2009 Rajbir and others ..... Petitioners vs Parkash Chand and others ..... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Harkesh Manuja, Advocate, for the petitioners. Rajesh Bindal J. Challenge in the present petition filed under Article 227 of the Constitution of India is to the order passed by the learned court below whereby the application filed by the petitioners for treating the issue of limitation as preliminary and dismissing the suit of the respondents/plaintiffs at initial stage being hopelessly time barred, was dismissed. Briefly the facts are that the respondents filed a suit for mandatory injunction seeking a decree of possession over the residential house bearing Municipal No. 865,Ward No. 17 and the present Municipal No. 942 situated in Mohalla Ghosian, Karnal, consisting of two rooms. The petitioners filed an application for treating the issue of limitation as preliminary on the plea that the suit was hopelessly time barred. However, the learned court below rejected the prayer by holding that the same being a mixed question of law and fact for which the evidence is required to be led to form a final opinion with regard to the respective stands of the parties and in the absence thereof it was not possible to decide the issue finally at the initial stage. Learned counsel for the petitioners submitted that the issue of limitation can very well be considered as preliminary and decided as the long term process of recording evidence on all the issues on merits can very well be avoided. He further submitted that even though the court had opined that the issue is to be decided on consideration of the evidence to be led by the parties, however, still it has been recorded in the impugned order that Civil Revision No. 5203 of 2008 (2) the suit filed is within limitation which finding will affect the petitioners at a later stage. Having heard learned counsel for the petitioners, I do not find any merit in the submissions made. There is claim and counter-claim made by the parties with regard to the suit being within limitation or time barred which cannot be considered only on the basis of pleadings and for which the evidence is required to be led. In my opinion, the learned court below has not committed any illegality in rejecting the prayer for treating the issue of limitation as preliminary and directed the consideration of the same along with other issues, the same being mixed question of law and fact. However, I find merit in the submissions made by the learned counsel for the petitioners though innocuous, to the effect that one line recorded by the learned court below in the impugned order that the suit is otherwise within limitation, was totally uncalled for. Once the court was opining that the issue of limitation cannot be treated as preliminary and is to be considered after trial, there was no occasion for recording such a finding. Accordingly, while dismissing the revision petition, it is directed that the learned court below shall not be prejudiced by any observation made in the impugned order at the time of final disposal of the suit especially considering the issue with regard to the limitation. 5.3.2009 ( Rajesh Bindal) vs. Judge