1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.4972 OF 2010 Pandurang Rambhau Raut Age : 64 years, Occ : Agri., R/o Kaij, Tq.Kaij, Dist.Beed. ..PETITIONER -VERSUS- Mahadev Pralhad Barkul Age : 50 years, Occ : Service (as Peon, Forest Department, Kallamb, Tq.Kallamb) R/o Yermala, Tq. & Dist.Osmanabad ..RESPONDENT ..... Mr.R.P. Bhumkar, advocate for petitioner. Mr.R.F. Totala, advocate for respondent. ..... (CORAM : V.R.KINGAONKAR,J.) DATE : 11 st August, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the parties. 2. By this Petition, the petitioner challenges the order dated 3rd March, 2010, rendered by the learned Civil Judge (J.D.), on Plaint (Exh.1) in Suit (R.C.S. No.164/2008) directing decision on preliminary issue as per Order 14 Rule 2(2)(b) of the Civil Procedure Code. 2 3. Heard learned counsel for the parties. 4. The relevant issue no.4 framed by the trial Court is thus: "Whether, object of the agreement between the plaintiff and the defendant is lawful ?" 5. It may be stated that none of the parties had demanded the decision of the said issue by treating the same as preliminary issue. There appears non-application of judicial mind and abruptly, the impugned order is rendered by the trial Court. There was no application filed by the respondent to treat the issue no.4 as preliminary issue. Nor the trial Court observed that recording of evidence will not be required and the issue no.4 is the only legal issue as such. In absence of proper material to satisfy the requirements of Order 14 Rule 2 of the Civil Procedure Code, ordinary procedure to try all the issues and pronounce judgment on all the issues as required under Order 14 Rule 2(1) could not have been obviated. The preliminary issues are those issues which go to the root of the matter on question of jurisdiction or that there is explicit bar to the suit, which is patently apparent from the record and particularly when, no evidence is required to be adduced by the parties. So far as the issue no.4 is concerned, it is implicit that 3 the same can not be decided without referring of the evidence because the respondent categorically stated that there was no agreement at all. Instead of expressing any opinion on the merits, it would suffice therefore to set aside the impugned order, which is non-speaking and arbitrary one. 5. In the result, the Petition is allowed. The impugned order is set aside. Rule made absolute accordingly. No costs. (V.R.KINGAONKAR) JUDGE gas/wp4972.10