IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1346 of 2006 DR. RANA RAJESH KUMAR SINGH Versus JAGAT LAL PRASAD & ORS ----------- 2 30.7.2008 Heard Counsel for the petitioners. The impugned order refusing to decide the suit on a preliminary point cannot be faulted specially when there is a categorical finding by the Court below that both question of fact and law would be required to decided while dealing with the issue of limitation, or res-judicata or the issue of advalorem court fee pertaining to valuation of the suit. Counsel for the petitioners has referred to two decisions of this Court in the case of Md. Ekram @ Md. Ekramul Haque & Ors. Vrs. Sk. Jhaksha & Ors. reported in 2005 (4) PLJR 150 and in the case of Arun Kumar Vs. State of Bihar reported in 2007 Supplementary PLJR 666 to contend that almost in similar case, this Court had set aside the order refusing to decide the suit on preliminary point. In the opinion of this Court, those two cases will have no application to the facts of this case where there is a specific finding that the issues sought to be pressed as preliminary issues, would require leading of evidence as they were mixed question of fact 2 and law. The Apex Court in the case of Lufthansa German Air Lines Vs. Vij Sales Corporation reported in 1998(8) SCC 623 has itself held that it is not a mandatory requirement of law that every case must be first adjudicated first on preliminary issue and if the preliminary issue fails then alone the case should be tried on all the issues. That being not object of under Order 14 Rule 2, this Court following the ratio of the Apex Court in the case of Lufthansa German Airlines (supra) would find no merit in this civil revision application which is hereby dismissed. Rsh (Mihir Kumar Jha, J.)