The amended provision of Order 14 Rule 2 CPC does not prohibit the trial of any issue, even of fact, as a preliminary issue. However, the trial court cannot dispose of the suit on the basis of its decision on the preliminary issue without deciding other issues on merit.

( 1 ) THE revisional application under section 115 of the Code of Civil Procedure has been assigned to us at the instant of N. K. Bhattacharyya, J. for answering the following questions framed by His Lordship:- (A)whether in deciding a matter under section 17 (2) of the West Bengal Premises Tenancy Act touching the question of relationship or existence of landlord and tenant and an issue pertaining thereto can be decided as a preliminary issue under Order 14 Rule 2 of Civil Procedure while disposing of the application under section 17 (2) of the West Bengal premises Tenancy Act? (b)whether West Bengal Premises Tenancy Act, being a special statute, and particularly section 17 (2) of the Act, being a special provision in that statute will override and get precedence over the general provision under Order 14 Rule 2 of the Code of Civil Procedure? (c)whether the law laid down in decisions of Aloka Ghosh v. Inspector General reported in 66 Calwn 302, Union of India v. N. K. Chowdhury reported in 79 CWN 371, Parul Banerjee v. Anand Kumar Agarwalla reported in 1979 (2) CLJ 297, Biswa Bhusan Bose v. Kusum Agarwalla reported in 1981 (1) CLJ 1 and Nanda Gopal Das v. Rabindranath De reported in 1987 (1) CHN 362 are no longer good laws and are judgments per incurian?

( 2 ) THE facts giving rise to the instant application as follows: the opposite parties filed a suit for eviction against the present petitioner on the ground inter alia of default in payment of rent under the provision of west Bengal Premises Tenancy Act. (Act) After entering appearance in the aforesaid suit the present petitioner filed an application under section 17 (2) of the Act thereby disputing the relationship of landlord and tenant between the parties. In the written statement filed by the petitioner the same dispute was raised and consequently and issue viz. Issue No, 10 was framed to the following effect: "was there any relationship of landlord and tenant between the plaintiff and defendant No. 1 Company in respect of the suit flat until its alleged determination. "

( 3 ) AT the time of hearing of the aforesaid application under section 17 (2) of the Act, the aforesaid issue was also taken up for hearing and evidence was led for the disposal of the aforesaid application and the issue. Ultimately by the order impugned, the learned Trial Judge held petitioner was not a defaulter in payment of rent and no amount was payable by it. The issue as to relation ship of landlord and tenant between the parties was however answered in affirmative in favour of the landlord.

( 4 ) BEING dissatisfied with the aforesaid order passed by the learned trial Judge, the petitioner has preferred the instant revisional application and the only question that was agitated before Mr. Justice N. K. Bhattacharyya was that in view of amended provision of order 14 Rule 2 of the Code of Civil Procedure, (Code) the learned Trial Judge acted without jurisdiction in taking up the said issue as a preliminary issue.

( 5 ) THE petitioner further contended that in view of the amended provision of Order 14 Rule 2 of the Code, the decisions of this court in a) Aloka Ghosh v. Inspector General (66 Calwn 302), b) Union of India v. N. K. Chowdhury (78 Calwn 371), c) Parul Banerjee v. A. K. Agarwalla 1979 (2) CLJ 297, d) Biswa Bhusan Bose v. Kusum Agarwalla 1981 (1) CLJ 1 and e) Nanda Gopal Das v. Rabindranath Dey 1987 (1) CHN 362, are no longer good law.

( 6 ) N. K. Bhattacharyya, J. did not agree with the submission made on behalf of the petitioner but in view of the decision of A. K. Nandy, J. in Ram Prosad Bajaj and Ors. v. Development Builders Pvt. Ltd. and Ors. reported in 1991 (1) CHN 443 wherein Nandy, J. accepted the aforesaid contention of the petitioner, referred the matter to the Hon'ble the Chief Justice for assigning the same to a Division Bench for its opinion.

( 7 ) THE matter has thus been assigned before us.

( 8 ) BEFORE we proceed to answer the questions referred