HARI SINGH Vs. AJIT SINGH

JUDGEMENT

(1.) By filing this revision petition under Article 227 of the Constitution of India, a challenge has been laid to the orders passed on July 30, 2005, and August 12, 2005. It is apparent from the records that vide order dated July 30, 2005, an issue, regarding limitation only, was framed and it was ordered to be treated as a preliminary issue. The petitioner thereafter moved an application with a prayer that the issue on limitation, which involves questions of facts and law, cannot be treated as a preliminary issue and further that without framing other issues, suit cannot be disposed of simply on the basis of issue framed by the trial Court on July 30, 2005. That application was dismissed on August 12, 2005, on the ground that when issue regarding limitation was framed, no such objection was raised by the petitioner.

(2.) In the order dated July 30, 2005, it has been stated that the preliminary issue regarding limitation was framed ,when no objection was raised by counsel for the petitioner in that regard. Before this Court, an affidavit has been filed by counsel for the petitioner that he had not given any concession, as recorded by the trial Court. A counter affidavit has also been filed by counsel for the respondent, wherein it has been stated that the issue was framed on consent given by both the parties. Be that as it may, in view of facts of this case, it is not necessary to probe, as to whether averments made in those affidavits are correct or not. It is an admitted fact that in view of the facts of this case, issue regarding limitation cannot be treated as a preliminary issue because admittedly, to prove that issue, parties are supposed to lead evidence. If that is so, as per established law, issue, which involves disputed questions of fact and law, cannot be treated as a preliminary issue. This Court is of the view that it is always desirable for the trial Court to frame all the issues arising from pleadings of the parties, and then may choose to treat, any issue as a preliminary issue. It is correct that in cases, where suit can be disposed of on the basis of issues of law, the trial Court may try those issues first and for that purpose, may, if so think fit, postpone the settlement of other issues on facts. However, such a power can be exercised only, in a case, where the trial Court is certain that the suit can be disposed of on the basis of issues of law alone and that too without recording any evidence. It is not open to the trial Court to try a suit, on mixed issue of law and facts by treating it as a preliminary issue. So far as facts of this case are concerned, issue regarding limitation cannot be treated as a preliminary issue as disposal of the said issue involves recording of evidence.

(3.) In view of facts mentioned above, orders under challenge are set aside, trial Court is directed to frame all issues as may arise from pleadings of the parties and thereafter provide three effective opportunities within four months to each of the parties. Trial Court, on completion of evidence, shall dispose of the suit within two months. Parties are directed to appear before the trial Court on March 9, 2006, on which date Court shall fix a date for framing of issues and thereafter proceed further, in the manner, as mentioned above.