KBP WP6603-08.sxw : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6603 OF 2008 Dinkar Dnyandeo Kawade ..Petitioner V/s. Shahaji Sadashiv Mali and ors. ..Respondents ..... Mr.P.R.Arjunwadkar, for petitioner. Mr.Ajay A. Joshi, for resp.no.1. Mr.P.U.Badadane, for resp.no.2. ...... CORAM : A.S.OKA, J. DATE : 22 nd JULY, 2009. P.C. : 1] Heard learned Counsel for petitioner and learned Counsel appearing for first respondent. Considering the nature of controversy the petition is taken up for hearing forthwith. As the first respondent-plaintiff is the only contesting party, service of notice to second and third respondents, who are co-defendants along with plaintiff, is dispensed with. 2] The first respondent filed a suit for declaration of ownership in respect of suit property and an application was made at exhibit 53 by the petitioner praying that preliminary issue as regards bar of limitation be framed and tried. By the impugned order dated 30 th July, 2008 said application has been KBP WP6603-08.sxw : 2 : rejected. While rejecting application, the learned Judge has observed that issue of limitation is a mixed question of law and facts and no evidence has been adduced by the parties. However, in paragraph no.10 of the impugned order, the learned Judge purported to decide the issue of limitation on merits and has observed that the suit has been filed within limitation. 3] It is true that the issue of limitation will have to be raised by petitioner by filing a written statement and a preliminary issue on the said aspect cannot be framed as prayed for by the petitioner. The learned trial Judge, while deciding the application praying for framing an issue on bar of limitation has purported to decide the issue. Only on this ground, the impugned order will have to be set aside while keeping the issue open to be decided at an appropriate stage. 4] Hence, the following order: (i) The impugned order dated 30 th July, 2008 is hereby quashed and set aside. (ii) The Application made by the petitioner at exh.53 is dismissed with liberty to the petitioner to raise the issue of limitation by filing written statement. (iii) It is made clear that the issue of limitation is kept open and the said issue will be decided by the learned trial Judge at an appropriate stage. ( A.S.OKA, J. )