IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16888 of 2011 Chandra Deo Prasad & Anr Versus M/S Newton India Construction ---------------------------------- 07. 15.12.2011. Heard the learned counsel for the parties. The petitioners claiming them to be the landlord filed eviction suit under the B.B.C. Act. The defendant-respondent filed written statement raising the defence that in fact, they are not tenant rather the property has been given to them in their share as per the development agreement. Thereafter the defendant filed the application under Order 14 Rule 2 Sub Rule 2 C.P.C. praying for deciding the issue that the suit is not maintainable under the B.B.C. Act as preliminary issue. The learned Court below by the impugned order dated 19.06.2008 to decide that question, directed the plaintiff to produce oral evidence. The learned counsel for the petitioners submitted that the issue raised by the defendant- respondent is not a question of law which could have been decided as provided under Order 14 Rule 2 Sub Rule 2 C.P.C. and admittedly, therefore, the learned Court below has directed the petitioners to produce evidence. On the other hand, the learned counsel for the respondent submitted that because there is no relationship of landlord and tenant between the parties 2 and suit under B.B.C. Act was not maintainable but the petitioners in the garb of eviction suit are trying to evict the defendants-respondents from their own property the Court below has rightly passed the order. So far the question raised by the respondents is concerned, is dependent on the evidences that may be produced by the parties either oral or documentary. Without the evidence it cannot be recorded as to whether there is relationship of landlord and tenant between the parties or not. Order 14 Rule 2 reads as follows: [“Rule 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 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.] In view of the aforesaid provision of law after amendment in the Code of Civil Procedure in the year 1976, it is not obligatory on the part of the Court to decide even a question of law as preliminary issue. It is 3 purely discretionary jurisdiction. According to Sub Rule 2, the Court can decide the question of law only as preliminary issue if it relates to the jurisdiction of the Court or, a bar to the suit created by any law. In the present case, the question raised by the defendant is not with regard to the jurisdiction of the Court nor the question raised is a bar created by any law. In such circumstances, the Court below had no jurisdiction to decide the question as preliminary issue. In my opinion, the question raised by the petitioner is rule of evidence and the defence of the respondents can be gone into only at the time of final hearing of the suit. In view of the above facts and circumstances of the case, in my opinion, the learned Court below has exercised a jurisdiction in the manner not permitted by law. As such, the impugned order is unsustainable in the eye of law. Accordingly, this writ application is allowed and the impugned order is set aside. The learned Court below shall proceed to decide the suit according to law. The issue raised by the respondent shall also be decided at the time of judgment. Saurabh (Mungeshwar Sahoo,J.)