1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2366 OF 2010 Harshavardhan Dhbarnendra Maraje and others Petitioners versus Dharnendra Surendra Maraje and others Respondents P.M.Arjunwadkar for petitioners. Nitesh Bhutekar i/by U.P.Warunjikar for respondent no.10 CORAM : A.S.OKA, J. DATE : 23rd April 2010 PC : 1. The petitioners-plaintiffs have filed this writ petition under Article 227 of the Constitution of India being aggrieved by the order of the Trial Court of framing a preliminary issue on the basis of bar created by section 164 of the Maharashtra Co-operative Societies Act, 1960. 2. On the basis of contention raised in the written statement that the suit was barred in absence of notice under section 164 of the said Act of 1960, the Trial Court exercised discretion under Sub Rule 2 of Rule 2 of Order XIV of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") by directing that the issue of bar created by section 164 of the said Act of 1960 shall be tried as a preliminary issue. An application was made by the petitioners at Exhibit-39 contending that only an issue of jurisdiction can be tried as a preliminary issue under section 9A of the said Code. Therefore, the prayer was made for striking off the said issue. The 2 said application has been rejected. The learned counsel for the petitioners relied upon the decision of this Court in case of Ujwalaben Mahindra Shah and another Vs. M/s.Kesharchand Gulabchand and others (2002(1)-Mh.L.J.-378). The learned counsel submitted that in view of the said decision, the preliminary issue could not have been framed by the Trial Court on the basis of the contention under section 164 of the said Act of 1960. 3. The decision of this Court will not help the petitioners. Under Sub Rule 2 of Rule 2 of Order XIV of the said Code, the Court has a discretion to try an issue regarding bar to the suit created by any law as a preliminary issue. Under the said sub rule, the Court can frame such preliminary issue and postpone settlement of other issues. All that this Court has held in the aforesaid decision is that in a case where there is mixed question of law and facts, the Court is under no obligation to exercise its discretion under sub rule 2 of rule 2 of Order XIV of the said Code. In the present case, the Trial Court has exercised discretionary power under Sub Rule 2 of Rule 2 of Order XIV of the said Code. In the circumstances, this is not a case where exercise of powers of superintendence under Article 227 of the Constitution of India can be made to interfere with the impugned order. The writ petition is rejected. All contentions of the parties are kept open. (A.S.OKA, J.)