Oral ORDER Heard learned counsel for the petitioner as well as learned counsel appearing on behalf of respondent no.2. 2. The petitioner is Defendant in Misc. Case no. 19 of 1992 and 20 of 1992 filed by one Surya Deo Singh (respondent no.2) for setting aside the Compromise decree dated 20.12.1985 passed in Title Suit no.73 of 1985 and partition suit no.139 of 1985. 3. The petitioner has filed the instant writ application against the order dated 04.10.2010 passed by Sub-Judge-II, Ara in Misc. Case no.19 of 1992 and 20 of 1992, by which he admitted the two Misc. cases provisionally for hearing on point of limitation with other issues together at the time of hearing of the case. The case of the petitioner is that issue of limitation should have been decided as preliminary issue. 4. A brief fact of the case is indicated herein below for easy reference: (i) A Title Partition Suit no.73 of 1985 was filed by the petitioner for partition, whereas Title partition suit no.139 of 1985 was filed by respondent 2nd set. The parties filed compromise petition and both the suits were decreed in terms of compromise on 20.12.1985. However, finding himself deceived in compromise filed Title suit no. 33 of 1986 and Title Suit no. 34 of 1986 for setting aside the compromise decree dated 20.12.1985. The two suits were dismissed on 19.09.1992 as not maintainable. (ii) The plaintiff/respondent no.2 realizing that he was prosecuting a wrong civil proceeding, filed Misc. case nos. 19 of 1992 and 20 of 1992 under Section 151 C.P.C. for setting aside the compromise decree dated 20.12.1985. The plaintiff also filed a petition on the safe side under Section 14(2) of the Limitation Act for condoning the delay. The office pointed that the Misc. Case is barred by limitation and a petition also has been filed for condonation of delay under Limitation Act. The defendant no.1 opposed the petition by filing rejoinder and prayed to dismiss the Misc. cases, as time barred. The trial court in its order dated 26.07.2008 observed that though the case was admitted on 14.09.1993, however no order on the point of limitation has been passed. The trial court thus fixed 22.08.2008 for hearing on the point of limitation and admission. The plaintiff/respondent no.2 being aggrieved challenged the said order in Civil Revision application bearing C.R. No.1719 of 2008. The trial court thus fixed 22.08.2008 for hearing on the point of limitation and admission. The plaintiff/respondent no.2 being aggrieved challenged the said order in Civil Revision application bearing C.R. No.1719 of 2008. The civil revision was disposed of on 17.10.2008. The relevant portion of the order passed in C.R. No.1719 of 2008 is quoted herein below: “That apart, once the petitioner himself had filed an application under Section 5 r/w Section 14 of the Limitation Act, the inclination of the Court below to pass an order on the same before entertaining the two miscellaneous cases, call it by name of admission or hearing, cannot be said to suffering from any jurisdictional error. Accordingly, both the civil revision applications, being misconceived, are hereby dismissed with a direction to the Court below to ensure that both the miscellaneous cases of the year 1992 are decided expeditiously preferably within a period of six months from the date of receipt/production of a copy of this order.” 5. The trial court on remand of the matter vide order dated 04.10.2010 (Annexure-3), provisionally admitted the case for hearing on the point of limitation as well as on other issues. The trial court observed that the issue of limitation is one of mixed question of facts and law and as such the same would be considered with all other issues at the time of final hearing of the case. Now the defendant-petitioner being aggrieved, has challenged the said order of trial court dated 4.10.2010 (Annexure-3). 6. The defendant-petitioner submits that the trial court ought not to have deferred the hearing on the point of limitation with other issues. He submits that the trial court cannot proceed with other issues unless and until it decided the issue of limitation, as preliminary issue. In support of his submissions, the petitioner has relied upon a decision reported in case of Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others, reported in AIR 1964 SC 1336 . 7. On the other hand, the respondent/defendant has appeared and filed counter affidavit. The respondent submits that the Misc. case filed under Section 151 of C.P.C. was well within the time prescribed under Article 137 of the Limitation Act, 1963, which provides for three years period of limitation from the date, the right to apply accrues. 7. On the other hand, the respondent/defendant has appeared and filed counter affidavit. The respondent submits that the Misc. case filed under Section 151 of C.P.C. was well within the time prescribed under Article 137 of the Limitation Act, 1963, which provides for three years period of limitation from the date, the right to apply accrues. On the safe side, a limitation petition was also filed under Section 14 (2) of the Limitation Act. Learned counsel submits that while computing the period of limitation, the time during which the applicant has been prosecuting another civil proceeding with due diligence is to be excluded. 8. Learned counsel submits that Sub-rule of Rule 2 of order XIV states that only such issues can be tried as preliminary issue which can be disposed of on an issue of law only and that too if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. 9. Learned counsel also submits that where a case is filed under inherent power (Section 151 C.P.C.), the application of limitation would not have any relevance as the inherent power is not affected by law of limitation. In support of submissions, learned counsel has relied upon a Division Bench judgment of this court in case of Mrs. Minnie Lall Vs. Mahadeo Lall Marwari, reported in A.I.R.(36) 1949 Pat. 112. 10. I have heard counsel for the parties. 11. The core issue is whether the trial court erred in observing that the issue of limitation involves mixed question of facts and law and as such cannot be tried as preliminary issue. Equally relevant issue would be as to in what circumstance an issue of limitation can be tried as preliminary issue. 12. Before I take up the issue, it would be necessary to notice the relevant laws; particularly Order XIV Rules 1 & 2 CPC which is quoted hereinbelow: - “XIV(1) Framing of issues- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue (4) Issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under rule 2 of Order X and after hearing the parties or their pleaders), ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence”. “XIV(2)Court to pronounce judgment on all issues- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule(2), pronounce judgment on all issues. (2) 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 an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose, may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue”. 13. The principal emerging from provision of Order XIV Rules (1) and (2) CPC is that court would generally pronounce judgment on all issues. This general rule is not in absolute terms as the provision itself admits of exception. 13. The principal emerging from provision of Order XIV Rules (1) and (2) CPC is that court would generally pronounce judgment on all issues. This general rule is not in absolute terms as the provision itself admits of exception. It states that if a case or any part of it can be disposed of on point of law only, the same can be tried as a preliminary issue, provided it relates to (a) jurisdiction of the court or (b) a bar to the suit created by any law for the first time enforce. The Court in such circumstances may postpone the settlement of other issues until such issue has been decided as preliminary issue. 14. It is no more res-integra that where an issue involves both mixed question of fact and law, it cannot be taken up as a preliminary issue. The Hon’ble Apex Court in the case of Ramesh B. Desai & Ors Vs Bipin Vadilal Mehta & Ors, reported in (2006) 5 SCC 638 , while observing the scope and object of Order 14 Rule 2 observed as followed in paragraphs 13 and 19 which are quoted herein below: 13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon and it was held as under: (SCR p. 421) “Under Order 14 Rule 2, Code of Civil Procedure 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. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.” Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue. 19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words “barred by law” occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan, J.) in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust it was held: (SCC p. 661, para 8) “8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time.” This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) CPC. 15. In the case of Balasaria Constructions (P) Ltd Vs Hanuman Seva Trust & Ors, reported in (2006) 5 SCC 658 , the Apex Court was considering the issue of rejection of plaint under Order 7 Rule 11(d) CPC on the ground limitation. The Apex Court observed that the question of limitation is a mixed question of law and fact, unless and until it is apparent exfacie on reading of the plaint that the suit is barred by limitation, the petition or plaint cannot be rejected under Order 7 Rule 11(d) CPC. Furthermore, a suit should not be ordinarily dismissed, as barred by limitation without proper pleading, framing of issues of limitation and taking of evidence. 16. Counsel for the petitioner argued that if an issue of limitation arises, the court cannot proceed further unless the issue of limitation is decided. The petitioner in support of his submissions has placed reliance upon a decision in the case of Manindra Land and Building Corporation Ltd. Vs Bhutnath Banerjee & Ors, reported in 1964 SC 1336. The relevant extract of paragraph 9 is being reproduced hereinbelow for easy reference. “9. Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter.” 17. The aforesaid paragraph of judgment on which the petitioner has placed reliance would be of no help to him, as the facts and issues are different. In the said judgment, the Hon’ble Apex court made those observations where a limitation in the case is not saved by any of the conditions mentioned in sections 4 to 24 of the Limitation Act. While examining the scope of section 3 of the Limitation Act, the Hon’ble Apex Court observed that the provision enjoins the court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed thereof in Schedule-I. The Apex Court in this context observed that it is the duty of the court not to proceed with the application, if it is made beyond the period of limitation prescribed. 18. Here the issue is different as the dispute is whether the issue of limitation is to be tried as preliminary or is to be tried with other issues. The issue is not whether the limitation petition itself is to be proceeded with or not. In other words, if plea of limitation is not saved under section 4 to 24 of Limitation Act, then as per judgment of Hon’ble Apex Court reported in AIR 1964 SC 1336 relied upon by the petitioner, the court ought not to proceed with the limitation application. The position is obvious from bare perusal of section 3 of the Limitation Act which is quoted hereinbelow: - “3. Bar of limitation-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The position is obvious from bare perusal of section 3 of the Limitation Act which is quoted hereinbelow: - “3. Bar of limitation-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act- (a) A suit is instituted- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted- (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court”. 19. Thus section 3 of the Limitation Act on which the petitioner has relied is subject to the provisions contained in Section 4 to section 24 of the Limitation Act which provides exclusion of period while computing period of limitation in circumstances mentioned thereof in those provisions. The case law relied upon by the petitioner would have no application to the facts and issues involved in this case. The respondents have also filed petition for condonation of delay in terms of sections 14(1) and (2) of the Limitation Act, 1956 which states that the time period spent in pursuing a civil proceeding with due diligence and in good faith in a court which on account of defect of jurisdiction or other causes of a like nature, is unable to entertain it. It is relevant to state here that a separate limitation petition is not necessary along with plaint for condonation of delay or exclusion of time as the same can be explained in the plaint itself. It is relevant to state here that a separate limitation petition is not necessary along with plaint for condonation of delay or exclusion of time as the same can be explained in the plaint itself. It has already been observed that a plaint or petition can be rejected only if it can be shown ex-facie that it is barred by limitation. Section 14(1) & (2) of Limitation Act is quoted hereinbelow: - 14. Exclusion of time of Proceeding bona fide in Court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 20. Coming to the facts of this case, the petitioner filed a suit bearing T.S. No.33 of 1986 and 34 of 1986 for setting aside the compromise decree dated 20.12.1985 passed in Title Partition Suit no.73/85 and 139/85 which were held not maintainable on 19.9.1992 and dismissed. The petitioner realizing the mistake that he was pursuing a civil proceeding which was not appropriate remedy, filed instant Misc. Case No.19/92 and 20/92 under section 151 CPC on 20.12.1992 within three months of earlier suits e.g. T.S. Nos. 33/86 and 34/86 being held not maintainable. The petitioner on safe side filed a petition under section 14(1) and (2) of the Limitation Act for exclusion of time spent in prosecuting Title Suit Nos.33 and 34 of 1986, which suffered from defect of jurisdiction. Article 137 of the Limitation Act prescribes 3 years period of limitation when there is no specific period of limitation provided for pursuing a civil suit/proceeding under the Act. Article 137 of the Limitation Act prescribes 3 years period of limitation when there is no specific period of limitation provided for pursuing a civil suit/proceeding under the Act. The Court has to ascertain whether the Misc. Case has been filed within permissible 3 years period of limitation with reference to Order 14 Rule 2 CPC. 21. In order to ascertain the period which could be excluded under section 14(2) of Limitation Act or to find out the starting point of limitations, one necessarily will have to enter into facts. The trial court has rightly observed that the issue of limitation would involve adjudication of mixed question of law and facts and should be decided together with other issues. 22. It would be relevant to state that the Hon’ble Apex Court in the case of Manindra Land and Building Corporation (supra) upon which petitioner has placed heavy reliance observed in paragraph 10 that section 5 of the Limitation Act empowers the Court to admit an application presented after expiry of specified period of limitation, if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Apex Court further observed that the Court therefore has jurisdiction to determine whether there was sufficient cause for the appellants in not making the application for setting aside the abatement of suit in time. It would be relevant to quote paragraph 10 of the said judgment on which the petitioner has relied upon. “10. Section 5 of the Limitation Act, on the other hand, empowers the Court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Court therefore had jurisdiction to determine whether there was sufficient cause for the appellants not making the application for the setting aside of the abatement of the suit in time and, if so advised, to admit it”. 23. Coming to the facts of the said case, the plaintiff Manindra Land and Building Corporation has instituted a suit on April, 1952 against Kalosashi Banerji, the father of respondent to recover a sum of money due on mortgage by deposit of title deed, which was decreed ex-parte. 23. Coming to the facts of the said case, the plaintiff Manindra Land and Building Corporation has instituted a suit on April, 1952 against Kalosashi Banerji, the father of respondent to recover a sum of money due on mortgage by deposit of title deed, which was decreed ex-parte. The preliminary decree was passed ex parte on February 8, 1955 and final decree was passed on 23.6.1955. On January 20th, 1957, almost 1 ½ to 2 years after passing of preliminary decree on 8.2.1955 and final decree, an objection was filed that the suit abated as the defendant Kalosashi died on 20.7.1954 and no substitution petition was filed. Thereafter the plaintiff-appellant filed an application for substitution for setting aside the abatement which was opposed by defendant-respondent that the maintainability of the same is barred under law of limitation. The trial court held that the plaintiff was prevented from sufficient cause in not preferring the substitution petition and as such allowed the application. The High Court in revision, reversed the order. The Apex Court set aside the order of the High Court and remanded the matter to the trial court to proceed with execution of the decree. 24. It would be worthwhile to state that 1976 amendment has made changes in the language of section 14(1) and 14(2) insomuch so the word “shall” has been substituted by the word “may” occurring under Order 14 Rule 2 CPC. In view of the amendment, it may not be obligatory for the trial court to determine an issue as a preliminary issue. Nonetheless, it is left to the court to determine whether such issue is to be tried as preliminary issue in the given situation. In this context reference may be made to the decision in the case of Jitendra Nath Ojha & Anr. Vs. Rameshwar Sahu & Ors., reported in 1992 (1) PLJR 465 rendered by Hon’ble Mr. Justice S.B.Sinha, as His Lordship then was. Paragraphs 12 and 13 of the aforesaid decision is quoted herein below for easy reference: “12. There cannot be any doubt that in terms of Order XIV, Rule 2 of the Code of Civil Procedure, it is no longer, obligatory on the part of the trial court to determine jurisdictional issue as a preliminary issue. 13. Paragraphs 12 and 13 of the aforesaid decision is quoted herein below for easy reference: “12. There cannot be any doubt that in terms of Order XIV, Rule 2 of the Code of Civil Procedure, it is no longer, obligatory on the part of the trial court to determine jurisdictional issue as a preliminary issue. 13. By reason of Code of Civil Procedure (Amendment) Act, 1976, emphasis has also laid down by the Parliament to try and dispose of all the issues together instead of disposal of the suit. The intention of the legislation becomes evident in view of the amendment made in Order XIV, Rule 2 of the Code of Civil Procedure by reason of Code of Civil Procedure (Amendment) Act, 1976 whereby and whereunder the word ‘shall’ occurring by Order XIV, Rule 2 of the Code of Civil Procedure as stood before amendment has been replaced by the word ‘may’. 25. The respondents had argued that the Limitation Act would not be applicable where the court is called upon to exercise the inherent power under section 151 of the Act. The petitioner in this context has relied upon the case of Mrs. Minnie Lal Vs Mahadeo Lall Marwari & Ors, reported in AIR (36) 1949 Pat 112 wherein the learned Division Bench approvingly quoted the following passage of justice Mahmud rendered in the case of Raghunath Das Vs Raj Kumar, reported in 7 Allahabad 276 (1885 AWM-25). “the law of limitation relates to the action of parties, but not to the action of the Court, ” and “the mere fact that one of the parties had made an application asking the Court to exercise that power will not….. render the action of the Court subject to the rule of limitation”. 26. The decision is an authority where no definite period of limitation is provided by law within which action must be taken. However, where a provision is made in law for a particular relief, it necessarily excludes any inherent power in the court to grant that relief. In this case the period of limitation is provided for setting aside compromise decree of a court as well as period that may be excluded under section 14(2). Thus, mere filing of a case under section 151 CPC would not itself render the issue of limitation inapplicable. In this case the period of limitation is provided for setting aside compromise decree of a court as well as period that may be excluded under section 14(2). Thus, mere filing of a case under section 151 CPC would not itself render the issue of limitation inapplicable. As such this court cannot profess to such wide proposition of law canvassed by respondents that in all circumstances the inherent power under section 151 CPC will not be affected by rule of limitation. But as the respondent has succeeded on other points, even if this point is decided against him, it would not affect the result of the case. 27. In backdrop of the aforesaid discussions, the legal position which emerges is as follows: (i) The general principle is that all issues ordinarily are to be tried together and only such issue is to be tried as a preliminary issue if it can be disposed of on issue of law alone; if the same relates to jurisdiction of a court or bar to the suit created by any law for the time being in force. The Code confers no jurisdiction on a court to try a suit on mixed question of facts and law as a preliminary issue. In view of 1976 amendment in language of section 14(1) & (2) whereby the word ‘shall’ has been substituted with ‘may’, it may not be obligatory for trial court to determine an issue as preliminary issue. Only in appropriate cases the court may try an issue of limitation as a preliminary issue which instance is rare and fewer, if it can be disposed of on point of law alone without there being any need to examine the facts or to ascertain the starting point of limitation or to compute the period that may have to be excluded under the Limitation Act or any other statutes or rules. Order 14 Rule 2 is distinct from Order 7 Rule 11(d) where a plaint can be rejected even before filing of the written statement and framing of issue, if it ex-facie emerges from perusal of the plaint that it is barred by limitation. There is no requirement of filing a separate limitation petition along with plaint as the delay or exclusion of time in filing of the same can be explained itself in the plaint. 28. There is no requirement of filing a separate limitation petition along with plaint as the delay or exclusion of time in filing of the same can be explained itself in the plaint. 28. From perusal of materials on record and submissions of counsel for the parties, I find that the issue of limitation in the instant case is one of the mixed question of facts and law which cannot be tried as a preliminary issue, as rightly held by trial court vide its order dated 4.10.2010 passed in Misc. Case Nos.19 of 1992 and 20 of 1992. The impugned order does not suffer from any infirmity and does not require interference. The trial court is directed to dispose of the suit including issue of limitation within six months from the date of receipt/production of a copy of this order. The parties would cooperate in the trial. This writ application is accordingly disposed of.