JUDGMENT 1. - This writ petition is directed against order dated 14.12.11 passed by the Additional District Judge, Srikaranpur in Civil Suit No. 9/08 (118/05), whereby while dealing with two applications preferred by the petitioner-defendant; one for deciding the issue with regard to limitation as preliminary issue and another for keeping burden of proof of the said issue upon the respondent-plaintiff, the application praying for determination of issue of limitation as preliminary issue, stands rejected. However, as per the operative portion of the order, the application dated 24.11.11 praying for keeping the burden of proof of the said issue upon the respondent-plaintiff, has been rejected. 2. The relevant facts are that the plaintiff-Ramdev Chug, the respondent no.2 herein, filed a suit for partition in respect of the disputed property accompanied by an application under Section 14(3) of the Limitation Act, 1963 (for short "the Act"). The suit instituted was registered subject to objection regarding limitation. The suit is being contested by the petitioner herein by filing a written statement thereto. On the basis of the pleadings of the parties, the trial Court framed the issues. The issue with regard to the suit being barred by limitation has been framed by the trial Court in the following terms: vk;k fd oknh dk okn fe;kn ckgj gSA " izfroknh 3. During the pendency of the suit, the petitioner-defendant preferred an application on 19.11.11 praying for the determination of issues with regard to the suit being barred by limitation as preliminary issue. Yet another application dated 24.11.11 was preferred by the petitioner praying for keeping the burden of proof of issue framed as aforesaid upon the respondent-plaintiff. 4. A perusal of the order impugned reveals that both the applications preferred by the petitioner were taken into consideration by the Court below, however, with regard to the burden of proof of the aforesaid issue, the Court has observed that in this regard the petitioner-defendant should prefer a separate application whereas, with regard to the said issue being decided as preliminary issue, the Court observed that it will be appropriate to decide the said issue along with other issues on the basis of the evidence to be led by the parties. But then, as per the operative portion of the order, the application dated 24.11.11 preferred by the petitioner praying for keeping the burden of proof of the said issue on the plaintiff, stands rejected. But then, as per the operative portion of the order, the application dated 24.11.11 preferred by the petitioner praying for keeping the burden of proof of the said issue on the plaintiff, stands rejected. 5. Learned counsel appearing for the petitioner submitted that the order impugned apparently suffers from error apparent on the face of record. Learned counsel submitted that the suit preferred by the petitioner is accompanied by an application under Section 14(3) of the Act and the suit instituted has been registered subject to objection with regard to limitation and therefore, it is for the plaintiff to prove that the suit is within limitation. Learned counsel submitted that though the application preferred by the petitioner in this regard has been dealt with by the Court below but at the same time, ignoring the application preferred, it is observed that in this regard that the petitioner should prefer a separate application. Learned counsel submitted that as a matter of fact, the application preferred by the petitioner in this regard has been rejected by the Court below without consideration and the application preferred by the petitioner for deciding the issue with regard to limitation as preliminary issue has not been disposed of. Learned counsel submitted that as per the application preferred under Section 14 (3) of the Act, the condonation of delay for the period 24.1.89 to 17.3.05 has been prayed for by the plaintiff on the basis of the liberty granted by the Court while withdrawing the earlier suit being No. 90/04(15/89) vide order dated 17.3.05 whereas, the said suit was filed by the plaintiffs Rajan Kukkar, Sushila Devi and Shashi Bala and not the plaintiff herein. Learned counsel submitted that as a matter of fact, the present plaintiff was not even party to the earlier suit and therefore, he cannot be permitted to invoke the provisions of Section 14(3) of the Act. Learned counsel submitted that there being no dispute on facts, the issue with regard to limitation remains a issue of law which needs to be decided by the Court as preliminary issue inasmuch as, if the said issue is decided against the plaintiff, the suit has to be rejected. Learned counsel submitted that this aspect of the matter has not been considered by the Court below in correct perspective. Learned counsel submitted that this aspect of the matter has not been considered by the Court below in correct perspective. Learned counsel submitted that the order impugned passed by the Court below without considering the relevant aspects suffers from jurisdictional error and therefore, deserves to be set aside. 6. On the other hand, the counsel appearing for the respondent submitted that the question of limitation is always a mixed question of law and facts which needs to be decided on the basis of the evidence to be led by the parties. Learned counsel submitted that while withdrawing the earlier suit, the liberty was granted by the Court to file fresh suit and therefore, the question of limitation if raised, the burden has to be kept on the defendant. Accordingly, it is submitted by the learned counsel submitted that the Court below has committed no error in passing the order impugned. 7. I have considered the rival submissions and perused the material on record. 8. Indisputably, while passing the order impugned, the Court below has dealt with both the applications preferred by the petitioner inasmuch as, there is specific reference in the order of the contents of application preferred by the petitioner praying for keeping the burden of proof in respect of the issue relating to the suit being barred by limitation upon the defendant. In para no.2 of the order, the Court has observed that no reply to the applications has been filed on behalf of the plaintiff which also shows that the Court was dealing with both the applications preferred by the petitioner-defendant. Strangely enough, while dealing with the question with regard to burden of proof in para no. 4 of the order, in the para no.5 it is observed that in this regard the defendant may file a separate application. When the application preferred by the petitioner in this regard was already there and being dealt with by the Court specifically, the observation made by the Court that the defendant should make a separate application in this regard apparently shows that the Court has proceeded with the matter in most casual manner. When the application preferred by the petitioner in this regard was already there and being dealt with by the Court specifically, the observation made by the Court that the defendant should make a separate application in this regard apparently shows that the Court has proceeded with the matter in most casual manner. That apart, it is to be noticed that the Court has come to the conclusion that the issue with regard to the limitation needs to be decided after evidence being led by the parties, however, while passing the order, the application dated 24.11.11 has been rejected by the Court wherein the petitioner-defendant has prayed for keeping the burden of issue regarding the limitation upon the plaintiff. Strangely enough, while rejecting the said application no finding has been recorded by the Court below in this regard rather, it is observed that the petitioner-defendant should make a separate application, ignoring the fact that an application in this regard has already been filed and was being dealt with by the Court while passing the order impugned. Thus, on the facts and in the circumstances of the case, in the considered opinion of this Court, the order impugned passed by the Court below in casual manner without proper application of mind, deserves to be set aside. 9. Accordingly, the order impugned dated 14.12.11 is set aside. The Court below is directed to decide the applications preferred by the petitioner afresh after due consideration of the rival submissions objectively in accordance with law. No order as to costs.Petition Allowed. *******