IRSHAD ALI vs SAJJAD ALI and 4 others

ORDER

' MUHAMMAD ILYAS, J.--This civil petition for special leave to appeal arises out of a suit for rendition of accounts filed by respondent No,1 Sajjad Ali against the petitioner, Irshad Ali and others. The suit was resisted, inter alia, on the ground that it was time-barred. The Senior Civil Judge, Multan, who was seized of the suit, framed a preliminary issue regarding limitation and, after recording some evidence thereon, held that the suit was time-barred. It was, therefore, dismissed by him while leaving the parties to bear their own costs. The petitioner went in appeal against the judgment and decree passed by the learned trial Court but without success. He, therefore, filed revision petition before the High Court which was decided by MrJustice Saeed-ur-Rehman Farrukh (as he then was). The learned Single Judge expressed the view that the question of limitation was a mixed question of law and fact and, therefore, all issues arising out of the pleadings of the parties, including the said issue, should have been framed, tried and decided together. He, accordingly, accepted the revision petition, set aside the judgments and decrees of two Courts below and remanded the case to the learned trial Court with a direction to frame fresh issues arising out of the pleadings of the parties and decide the case afresh, after affording reasonable opportunity to the parties to lead evidence.

2. Feeling aggrieved by the decision of the High Court, the petitioner has sought leave to challenge the same by means of an appeal.

3. View taken by the first two Courts was that the partnership between the parties stood dissolved with effect from 30th June, 1985 and, therefore, the suit for rendition of accounts, brought on 8th April, 1989, was barred by the provisions of Article 106 of Limitation Act which provides a period of three years for such a suit. The plaintiff's plea in this regard was that the partnership had never been dissolved and, therefore, the suit was within time. Whether or not the partnership had been dissolved was a question of fact and the issue of limitation was linked therewith. The learned Senior Civil Judge should, therefore, not have framed the issue of limitation only and decided suit by recording a finding thereon.

4. No doubt, it has been provided in rule 2 of Order XIV of the Code of Civil Procedure that where "issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined'; but the issue of limitation, framed in this case, was not an issue of pure law because, as indicated above, it involved a mixed question of fact and law. This is also borne out by the fact that the learned Senior Civil Judge did record evidence on the said issue before deciding the suit as aforesaid. If it was a question of law only, there was no need to record any evidence. Sound decision of the question of limitation depended on a well-considered decision regarding dissolution of partnership and since the parties were not allowed an opportunity to lead evidence with regard to the question of dissolution by framing a specific issue in this behalf, the case was not properly tried. It, therefore, deserved to be remanded for fresh decision.

5. In this view of the matter, we find nothing wrong with the decision of the learned High Court and refuse to grant leave to appeal against its verdict. The petition in hand is, accordingly, dismissed.