CRP 244/2008 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY The petitioners who are the defendants in TS No.8/2008 pending in the Co urt learned Munsiff No.4, Kamrup at Guwahati by the present petition is challeng ing the order dated 14.7.08 passed in Misc(J) Case No.348/2008 arising out of th e said suit, whereby and where-under the learned Court below has observed that t here is no ground for stay of the further proceedings in the suit as well as in the Misc(J) Case. Mr S. Banik, learned counsel for the petitioners has submitted that thou gh the petitioners-defendants after filing of the written statement in the suit, filed an application u/s 151 of the CPC raising a preliminary objection relatin g to the maintainability of the suit with a prayer to adjudicate the said prelim inary objection before proceeding further with the suit, the learned Munsiff by the impugned order dated 14.7.08 has rejected the said application filed u/s 151 of the CPC presuming to be an application for stay of the further proceedings i n TS No.8/2008 as well as in the Misc(J) Case. Mr Banik, therefore, submits that the learned court below may be directed to take up the issue relating to the ma intainability of the suit as the preliminary issue. It appears from the application filed u/s 151 CPC that the present petit ioners raised the preliminary objection relating to the maintainability of the s uit as well as the Misc(J) Case and prayed for adjudicating such preliminary obj ection. The learned court below vide order dated 14.7.08, however, rejected such application presuming to be the one filed for stay of the further proceedings i n the suit as well as in the Misc(J) Case. The learned court below in fact has n ot considered the prayer made by the petitioners in the application filed. Admittedly, no issue has been framed by the learned court below as requi red under Order 14 of the CPC. According to the petitioners, the plea regarding the maintainability of the suit has been taken in the written statement. If such a plea has been taken, the Court after consideration of the pleadings of the pa rties and the dispute between them, is required to frame the issue. The Court un der Order 14 Sub-Rule (2) of Rule 2 of the CPC has also the power to take up any issue as preliminary issue, subject to fulfillment of the conditions stipulated therein i.e. the issue relating to the jurisdiction of the Court or a bar to th e Court created by any law for the time being in force, provided the Court think s it fit that the determination of such issue as preliminary issue is required t o be made before deciding other issues. It is also a settled position of law tha t even where question of law is involved and while deciding the same, some amoun t of evidence is to be recorded and is required to be looked into, such an issue cannot be decided as preliminary issue. Since no issue has been framed as yet as submitted by the learned counse l for the petitioners, it is open to the learned Court below to consider the pra yer of the petitioners to decide the issue of maintainability as preliminary iss ue, subject to the observations made hereinabove. The revision petition accordingly stands disposed of, without interferin g with the impugned order. No costs.