IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15477 of 2011 Sandeep Shukla & Anr Versus Smt.Sarita Choudhary & Ors ---------------------------------- 02. 13.09.2011 Heard the learned counsel for the petitioners. This application under Article 227 of the Constitution of India has been filed by the defendant- petitioner against the order dated 19.07.2011 passed by Sub Judge IX, Muzaffarpur in Partition Suit No.157 of 2008 whereby the learned Court below rejected the application of the petitioner to decide the question of limitation as preliminary issue. The learned counsel for the petitioners submitted that the plaintiff filed the suit for declaration that the gift deed dated 29.10.1988 is void, illegal, inoperative and obtained by playing fraud and not binding on the plaintiff and the suit has been filed in the year 2008. Therefore, the suit is barred. In such circumstances, the learned Court below should have decided this issue as preliminary issue. The provision as contained in Order 14 Rule 2 mandates the Court to pronounce judgment on all issues. This mandate is subject to Sub Rule 2. So far Sub Rule 2 is concerned, the Court can decide an issue of law only if the said issue of law relates to the jurisdiction of the Court or a bar to the suit created by any law. In the present case, according to the plaintiff, the gift deed has been 2 obtained by fraud and it is forged gift deed and void and, therefore, this question can only be decided after the parties are given opportunity to adduce evidence on this point. Therefore, the question of limitation raised by the petitioner here is not a pure question of law but it is mixed question of law and fact dependant upon the evidences that may be produced by the parties. After amendment of the Code of Civil Procedure, Order 14 Rule 2 Sub Rule 2 gives discretion to the Court to try an issue as preliminary issue or not. Therefore, it is not obligatory on the part of the Court to decide an issue as preliminary issue even if it relates to the issue of law only. In such view of the matter, since the learned Court below has the discretion, it cannot be said that the impugned order suffers from jurisdictional error. I, therefore, find no reason to interfere with the impugned order and, therefore, this application is dismissed. Saurabh ( Mungeshwar Sahoo, J.)