IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1691 of 2005 JAGDISH SINGH Versus SUSHILA DEVI ----------- 6 18/7/2008 Heard counsel for the petitioner. No one appears on behalf of the opposite party despite service of notice. Counsel for the petitioner with reference to the impugned order points out that there is an apparent jurisdictional error, in as much as, the court below has clearly ignored the provisions of Order XIV Rule 2 of the Code of Civil Procedure (C.P.C.), which requires the court to frame and decide the question of maintainability of the suit on account of its being barred in law, as a preliminary issue. Counsel for the petitioner submits that when it was brought to the notice of the court below that the suit is clearly barred under section 4 B of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act ( hereinafter referred to as the ‘Act’), all that was required to be considered was that such an issued ought to have been framed as a preliminary issue and that could have been gone into and adjudicated within the ambit of Order XIV Rule 2 C.P.C. In the opinion of this Court, counsel for the petitioner is correct. The question of maintainability the suit on accounts of its being barred under Section 4 of the Act is one which goes to the root of the matter. The whole object of Order XIV Rule 2 of the C.P.C. is to dispose of 2 a suit on a pure question of law by way framing and adjudicating as a preliminary issues. In that view of the matter, this Court would set aside the impugned order and direct the court below to first frame all the issues as it appears from the impugned order that the issues have not been framed, and after framing the issues the court below will adjudicate the issue of maintainability of the suit on the ground of its being barred under section 4 B of the Act. In the event, the court below would hold that the suit is still maintainable being not barred under Section 4(b) of the Act, it would proceed to decide the suit on all the issues. With the aforesaid observation/direction, this application is allowed. ( Mihir Kumar Jha, J. ) Abhay Kumar