1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 84/2011 (Chandrakant G. Gupta & another VERSUS Rajeev K. Biyani) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.A. Mohta, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 12 , 2011 . By this petition, the petitioners impugn the order passed by the 4th Joint Civil Judge (Senior Division), Akola on 09.11.2010 rejecting an application filed by the petitioners for framing the issue of limitation as a preliminary issue and deciding the same before the other issues. The petitioners are the original defendants. A suit was filed by the plaintiff for recovery of amount and/or for specific performance of contract and possession of the property. After the suit was instituted, the defendants- petitioners filed an application under Order VII Rule 11 of the Code of Civil Procedure mainly on the ground that the suit of the plaintiff was not filed within the prescribed period of limitation. The application filed by the petitioners under Order VII Rule 11 of the Code of Civil Procedure was dismissed. The petitioners preferred a revision against the same before the High Court but, the said revision application was also rejected. After the revision application was rejected by this Court on 27.07.2010, the petitioners again filed an application seeking the framing of issue of limitation as a 2 preliminary issue and for deciding the same before the other issues. The prayer made in the application filed by the petitioner was seriously opposed by the plaintiff. It was the case of the plaintiff that the defendants were filing the application with a view to protract the proceedings. It was also stated in the reply that the issue of limitation, specially in this case was a mixed question of law and facts and could be decided along with the other issues after tendering of evidence. The plaintiff sought for the dismissal of the application. The trial Court, after hearing the learned counsel for the parties, by the impugned order dated 09.11.2010, dismissed the application and held that the issue of limitation would be decided along with the other issues. The order passed by the trial Court on 09.11.2010 appears to be just and proper. The submission made on behalf of the petitioners that apparently the suit was barred by limitation as the amount was advanced in the year 2002 and the suit was filed in the year 2006 and, therefore, it was necessary for the trial Court to have framed the issue of limitation as a preliminary issue is liable to be rejected as in the instant case, it is the case of the plaintiff that the defendants and specifically the defendant no.1 had agreed that the entire amount due would be paid latest by 14.01.2004. It is clear from the controversy involved in this case that the issue of limitation was a mixed question of law and facts and the petitioners had filed the application for framing the issue of limitation as a preliminary issue and for deciding the same only with a view to prolong the matter and 3 delay the trial. Since the suit was filed in the year 2006 and was pending before the Court for long, the trial Court held that the issue of limitation would be decided along with the other issues, which would be framed as early as possible. The impugned order dated 09.11.2010 does not suffer from any error seeking interference by this Court in exercise of the writ jurisdiction. The writ petition is, therefore, dismissed with no order as to costs. JUDGE APTE