SOBHAGMAL AND ANR Vs. GORDHAN DAS AND ORS

JUDGEMENT

(1.) Challenge in the instant writ petition is to the order dated 10th April, 2009 whereby the learned Additional District Judge No.1 (Fast Track), Ajmer considered to adjudicate issue No.2, as a preliminary issue.

(2.) Having considered the submissions made at the bar and carefully perused the relevant material on record including the impugned order, it is noticed that the plaintiff-petitioner filed a suit for specific performance of contract. They had entered an agreement on 19th July, 1994 regarding sale of a land. As per the terms and conditions incorporated in the agreement, Rs.20,000/- were paid as an advance and the remaining amount was to be paid within ten months of the agreement. The defendants filed the written statement of defence. Based on pleadings, the court settled eight issues. The learned trial Court considered to adjudicate issue No.2 first as preliminary issue, as it was related to question of limitation.

(3.) Learned counsel for the petitioner canvassed that the learned trial Court had already decided vide order 25th April, 2008 that the issue of limitation was a mixed question of law and fact, which should be adjudicated after examining the written statements of defence and considering the evidence led by both the parties in this regard. Despite this order, the learned trial Court vide impugned order, decided to adjudicate issue No.2 first as a preliminary issue. Learned counsel further canvassed that if any issue entails a mixed question of law and fact, then the court is required to pronounce the judgment on all the issues together.