Kalyan Rai Surana, J.

1. Heard Mr. Rup Jyoti Bordoloi, learned counsel for the petitioners and Mr. Kaushik Pathak, learned counsel for the respondent. By filing the present application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 06.08.2016 passed by the learned Civil Judge, North Lakhimpur in M.S. No. 5/2015, by which the suit was dismissed after framing preliminary issue of whether the suit is maintainable in law or not. The learned counsel have been heard at the admission stage and owing to the nature of dispute, which arises on the issue of law, no requirement is felt to call for the records from the learned trial court.

2. The brief introductory fact is that in the plaint it is alleged that the respondent herein had allegedly made defamatory statement against the petitioner in connection with a land acquisition compensation proceeding pending before the Additional Deputy Commissioner, Lakhimpur and also before the neighbours against the petitioners. Aggrieved thereby, the petitioners had instituted a suit for claiming damages/compensation of Rs. 50,00,000/- for suffering defamation. The said suit was registered as Money Suit No. 5/2015.

3. The respondents/defendants had contested the suit. In paragraph 2 of the written statement, it was stated that "the suit is not maintainable in law and facts. Hence it is liable to be dismissed." Issues were framed and the evidence of PW-2 was filed. While the suit was fixed for further evidence by the plaintiff's side, the respondents herein filed a petition under Order XIV Rule 2 of the Code of Civil Procedure for framing preliminary issue on the point of maintainability. In the said petition, amongst others, it was stated that the defendants had a right to be exempted from the suit under the defence of qualified privilege available in cases of tort involving defamation and it was further stated that the matter arose out of a mutation case, which is still sub-judice, as such, the right, title and interest of the parties had not accrued. It was prayed for framing a preliminary issue, viz., "whether this suit is maintainable in the eye of law as well as facts?" and for dismissing the suit. The petitioners filed their written objection to the said petition, wherein it was stated that in their written statement, the respondents had nowhere stated any clear point of law against them, therefore, the question of preliminary issue did not arise at all and it was also stated that the issue whether the suit is maintainable in the eye of law as well as facts is purely a question of facts and it can be decided after examining the evidence and whether the defence of qualified privilege is available are matter of facts and not a question of law. Hence, it was prayed for dismissing the petition.

4. The learned trial court by its order dated 30.07.2016, framed preliminary issue -whether suit is maintainable in law or not and fixed the suit on 06.08.2016 for order. On 06.08.2016, the learned Civil Judge, North Lakhimpur passed the following order:-

"One preliminary issue was framed whether this suit is maintainable in law or not. On this point Ltd. Counsel for the defendants already submitted that filing objection by defendants before Land Acquisition Department, Lakhimpur against plaintiffs no civil wrong arises. After bare perusal of the pleading of the plaintiff it appears prima facie that plaintiffs suit is based on the objections filed by defendants before Land Acquisition Board, i.e., Addl. Deputy Commissioner, Lakhimpur and plaintiffs allegation is that said objection petitions are false, defamatory and on the said objection petitions the plaintiff has suffered injury and reputation and filed this suit for compensation for defamation against defendants. Admittedly it appears from the pleading of the both sides that the defendants are not stranger to the property against which defendants filed objection petitions before Land Acquisition Boa