S.B.Sinha, J.

1. This revision application is directed against an order dated 13-9-1985 passed by Shree K.K. Chaubey, Munsif, Sikrahna at Motihari in Title Suit No. 138 of 1982, whereby and where under, the learned Court below has refused to decide the issue of res judicata as a preliminary issue on the ground that in view of the facts and the circumstances of the case it was not possible for him to decide the issue at that stage.

2. In view of the point of law involved in this civil revision application, it is not necessary to state the facts in details. Suffice it to say that the Opposite party No. 1 instituted a suit for eviction of opposite party Nos. 2 and 3 from the house in suit as described in Schedule 1 appended to the plaint as also for decree for arrears of rent. According to the petitioner, although he was not a party to the said suit but having come to learn thereof he filed an application for adding himself, as a party therein which was allowed. He, thereafter, filed a written statement contending inter alias, therein that the question with regard to the title in relation to the land in suit was the subject matter of an earlier suit being title suit No. 95 of 1964. The said suit was dismissed. The petitioner has further asserted that the aforementioned decree was challenged in first appeal before District Judge which was allowed and the judgment of the appellate court was affirmed by this Court in Second Appeal. According to the petitioner, delivery of possession of the land in question was also obtained in execution of the decree passed in the aforementioned appeal. The petitioner, therefore, contends that in view of the judgment and decree passed in the aforementioned Title suit No. 95 of 1964, the same operates as res judicata so far as the title suit No. 138 of 1982 is concerned. Before the learned court below both the parties filed various documents-However, the petitioner did not file the judgment of this Court in Second Appeal No. 669 of 1974 but filed the judgment of the first appellate court only. The learned court below after taking into consideration the submissions made by the parties observed as follows:

The suit land and the house was not the subject-matter of title suit No. 95/64. Hence, I find that these things cannot be examined at this stage and no finding can be reached upon the examination of the material available before the court and so I hold and decide that the suit cannot be hit by the law of res judicata at this stage and so there is no merit in the petition of the defendant and hence, it is, hereby rejected. The matter will be decided at the time of final hearing of the suit by framing an issue on this point.

3. Plainly enough, the learned Court below by his impugned order has expressed his inability to decide the question of res judicata at that stage without taking into consideration the other evidences which might be brought on the record at the time of trial.

4. Mr. Bhupendra Narain Sinha, the learned Counsel appearing on behalf of the petitioner, submitted that by passing the impugned order, the learned Court below has refused to exercise his jurisdiction vested in him under Order XIV, Rule 2(2) of the Code of Civil Procedure.

5. The learned Counsel in this connection has drawn my attention to a decision of this Court Sawaria Brothers V/s. Gupta and Co. reported in 1984 BLJ 389. The learned Counsel further cited a Division Bench decision of Madras High Court -- . The learned Counsel further submitted that regard being had to the principle and object of enactment of the provisions of Sec. 11 of the Code of Civil Procedure, it was incumbent upon the learned Court below to decide the preliminary issue as to whether the suit was barred by res judicator No. Order XIV, Rule 2 of the Code of Civil Procedure reads as follows:

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 i