I have already heard the learned counsel Mr. Ajeet Kumar on behalf of the petitioner and learned senior counsel Mr. Keshav Srivastava on behalf of the respondents.

2. This application under Article 227 of the Constitution of India has been filed by the defendant petitioner against the order dated 3.9.2011 passed by Sub Judge-I, Darbhanga in Money Suit No. 14 of 2008 whereby the learned court below rejected the application dated 29.4.2011 filed by the petitioner under Order 14 Rule 2 of the Code of Civil Procedure.

3. The plaintiff respondents filed the aforesaid Money Suit No. 14 of 2008 against M/s. Raghav Construction through present petitioner praying for decree for dissolution of partnership firm, rendition of account, supply of detailed and correct account together, sales tax, income tax paid thereon of each contract work done by the firm along with the income derived from mixing machine and the roller of the plant production and the original ledger of the firm with income and expenditure of cash contract work since 17.10.2000 to 2008 and for passing a decree to the extent of 50% of the net income of the firm to the extent of rupees two crores in favour of the plaintiff with total invested amount of Rs.9,88,540/-.

4. The present defendant petitioner filed written statement denying the allegation. It was alleged that the plaintiffs’ suit is barred by various provisions of Partnership Act and, therefore, the suit is liable to be dismissed. The defendant thereafter filed the present application on 29.4.2011 praying therein to frame an issue to the effect that “as to whether the suit is barred by any law or not ?” and decide the same as preliminary issue. By the impugned order the court below has rejected the said application.

5. The learned counsel for the petitioner submitted that since the suit itself was barred under Section 69 sub Section 2 of the Partnership Act the learned court below should have decide this issue as preliminary issue but rejected the application on frivolous grounds. According to the learned counsel it is a pure question of law and can be decided as preliminary issue as has been laid down by various decisions of this Court in 1973 BLJR 753, 1963 BLJ 149, 1984 BLJ 389. On the strength of the above ruling the learned counsel submitted that the impugned order is liable to be set aside and the learned court below be directed to decide this issue as preliminary issue.

6. On the contrary, the learned senior counsel Mr. Keshav Srivastava submitted that earlier the petitioner had filed application under Order 7 Rule 11 (d) praying for rejection of the plaint on the ground that the suit is barred under Section 69 sub Section 2 of the Partnership Act. After hearing both the parties the court below held that the suit is not barred under Section 69 sub Section 2 of the Partnership Act rather it is saved under Section 69 clause 3 of the said Act. The learned counsel submitted that even if the partnership firm is unregistered then also the suit of the present plaintiff cannot be said to be barred as has been held by the Apex Court in (2004) 13 SCC 358 Bhartesh Chandra Jain Vs. Shoib Ullah and others. The learned counsel further submitted that earlier considering all these materials and the pleadings and after hearing the parties the learned court below has specifically held by terms of Order dated 5.4.2011 that the suit is not barred under Section 69 (2) rather it is saved under Section 69(3) of the Partnership Act. In view of the above facts now the petitioner cannot be permitted to agitate the same question of law as it is barred by principles of res judicata. Moreover the vague application has been filed and in that application the petitioner is praying that an issue to the effect that “as to whether the suit is barred by any law or not” be framed. Considering this aspect of the matter the learned court below has rejected the prayer by the impugned order. In such circumstances in supervisory jurisdiction this Co