IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12064 of 2011 Bipin Bihari Gupta Versus Panna Lal ----------- 02. 28.07.2011 Heard the learned senior counsel, Mr. Kamal Nayan Choubey appearing on behalf of the petitioner. This application has been filed under Article 227 of the Constitution of India against the order dated 04.05.2011 passed by Munsif II, Sasaram in Eviction Suit No.9 of 2008 whereby the learned Court below refused to decide the issue of non-maintainability of Eviction Suit as preliminary issue. The learned counsel for the petitioner submitted that after the institution of this Eviction Suit by the plaintiff-respondent, the plaintiff-respondent entered into a contract to sell the suit property to the petitioner and, therefore, the petitioner has filed suit i.e. title suit No.114 of 2009 for specific performance of contract. In such circumstances, since there is no relationship of landlord and tenant, the Eviction Suit is not maintainable. Therefore, the petitioner filed the application for deciding this question as preliminary issue under Order 14 Rule 2 C.P.C. The learned Court below by the impugned order has rejected the said prayer. After amendment of the Code of Civil Procedure in 1976, it is not obligatory on the part of the 2 Court to decide an issue as preliminary issue. The discretion has been given to the Court. Moreover, the non- maintainability of the suit is not an issue which relates to the jurisdiction of the Court. Had the issue related to the jurisdiction of the Court or bar created by any law to the suit it would have been considered. The Court below has observed that this issue shall be decided along with other issue. The learned Court below has exercised the discretionary jurisdiction. Therefore, this is not a fit case for interference in supervisory jurisdiction. I, therefore, find no merit in this writ application and accordingly, it is dismissed. Saurabh ( Mungeshwar Sahoo, J.)