IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10145 of 2011 Gopal Singh @ Jahanwi Kumar @ Jahanwi Kr.Singh Versus Krishna Paswan & Ors ---------------------------------- O R D E R 00. 13.10.2011. I have heard Mr. T.N. Maithin, the learned senior counsel on behalf of the petitioner and Mr. Umakant Shukla, the learned counsel on behalf of the respondent. (2) This application under Article 227 of the Constitution of India has been filed by the defendant- petitioner against the order dated 22.12.2006 passed by Sub Judge Ist, Jehanabad in Title Suit No.60 of 2005 whereby the learned Court below rejected the application filed by the petitioner to decide issue No.1, 3, 5, 6, 7 and 8 as preliminary issue. (3) The Issue framed in the Court below are as follows : i. Is the suit as framed maintainable? ii. Has the plaintiffs got cause of action for the suit? iii. Is the suit barred by the principle of estoppel, waiver and acquiescence? iv. Is the suit barred by the law of limitation and adverse possession? v. Is the suit barred U/s 48 (F) (4) of Bihar Tenancy Act? vi. Is the suit barred under the provision of Section 34, 37, 38 and 41 of the Specific Act? vii. Is the suit barred U/s.11 of the C.P.C.? viii. Is the Order dated 28.06.04 passed in case No.-865/2000, Tr. No.989/2003, 87/2004 is without jurisdiction and nullity and not binding upon the plaintiffs in view of the order passed by Honourable High Court warranting no interference in the order dated 28.06.2004 ? ix. To what other relief or reliefs the plaintiffs are entitled to? - 2 - (4) From the above facts, it appears that the defendant prayed to decide almost all the issues as preliminary issue. The only issue left is Issue No.2, 4 and 9 for which the defendant-petitioner did not pray for deciding the same as preliminary issue. (5) The learned senior counsel, Mr. Maithin, submitted that from perusal of the plaint itself, it appears that the plaintiff has got no cause of action and the relief prayed for cannot be granted. So far the submission of the learned counsel is concerned, as has been stated above, Issue No.2 relates to the contention that the plaintiff has got no cause of action for the suit. The petitioner never prayed for deciding this issue as preliminary issue. So far the contention that the relief claimed by the plaintiff cannot be granted is concerned, in my opinion, on this ground that ultimately the suit will be dismissed, the Court cannot try any issue as preliminary issue. As stated above, the petitioner prayed for deciding almost all the issue as preliminary issue. (6) 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 - 3 - determined, and may deal with the suit in accordance with the decision on that issue.” (7) This Rule 2 of Order 14 has been substituted by amendment in the year 1976. After amendment, the mandate of Rule 2 is that the Court should pronounce the Judgment on all issues. The exception is that the Court may decide an issue as preliminary issue, if it relates to the jurisdiction of the Court or a bar to the suit created by any law. This discretion is not mandatory. It is not obligatory on the part of the Court to decide an issue as preliminary issue rather it is discretionary and, therefore, an order directing that the preliminary issue shall be decided after taking evidence along with other issues does not suffer from any manifest illegality. (8) As stated above, the petitioner prayed for deciding almost all the issues framed in the suit as preliminary issue and, therefore, the learned Court below rightly refused to decide the same. I, therefore, find no jurisdictional error in the impugned order and, therefore, in exercise of jurisdiction under Article 227 of the Constitution of India, the impugned order cannot be interfered with. Accordingly, this writ application is dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 13thday of October, 2011 Sanjeev/.N.A.F.R.