The judgment established the discretionary nature of trying an issue as a preliminary issue under Order XIV Rule 2 CPC and emphasized the conditions that must be satisfied for such a trial.

Defendants 2 and 4 in O.S. No. 161 of 1987 are" the revision petitioners. They filed LA. 1329 of 1988 stating that the maintainability of the suit has to be heard as preliminary issue. Additional issue No. 4 is as to the maintainability of the suit. Lower court found that the said issue concerns a fixed question of law and fact which requires evidence and hence has to be tried along with the other issues. The said order is under challenge in the Civil Revision Petition.

2. Suit for declaration of the plaintiffs right of easement of way over the plaint B schedule property, for a mandatory injunction to remove the obstruction created by defendants 2 and 4 in the B schedule property, and for a prohibitory injunction against the defendants from obstructing the plaintiff plying lorry through the B schedule property. One of the contentions of defendants 2 and 4 in their written statement was, after document dated 18-6-1983, plaintiff has no right or title over the plaint A schedule property, that one Ouseph Ouseph had instituted O.S.711 of 1971 in which the plaintiffs father was the first defendant and that the plaintiffs contentions are barred by the decision in the said case. Additional issue No. 4 was as to -the maintainability of the suit and additional issue No. 6 was whether the contention of the plaintiff is barred by estoppel by reason of the decision in O.S.711 of 1971.

3. The question whether an issue is lobe tried as a preliminary issue has to be decided as per the provision in Order XIV Rule 2 CPC. Sub-rule (1) of rule 2 of Order XIV enjoins that, the court shall pronounce judgment on all issues subject to the provisions in sub-rule (2) thereof. Therefore, the general Rule is that the court should pronounce judgment on all issues. Rule 2 of Order XIV CPC reads:

"2. Court to pronounce judgment on all issues.--(1) 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 issues.

(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue".

(Emphasis supplied).

Therefore, unless it is found that issue that is sought to be tried as a preliminary issue would answer the ingredients of sub-rule (2), the prayer of the revision petitioner cannot be allowed.

4. Learned Counsel for the revision petitioners contended, though issue No. 4 concerns only the maintainability the same would take in additional issue No. 6 also. According to the learned counsel the suit is not maintainable on account of the bar of resjudicata also. According to him the view of the lower court that the said issue No. 4 is a mixed question of law and fact is not correct and that the court exercised its jurisdiction with material irregularity in finding that the additional issue No. 4 cannot be tried as the preliminary issue. On the other hand, learned counsel for the respondents contended that, after the amendment to Order XIV Rule 2 C.P.C, there is no obligation on the court that any issue should be tried as preliminary issue and that since the decision to try the said issue along with other issues after recording the evidence will not cause any injustice, there could be no impropriety the exercise of the jurisdiction by the lower court. It was also contended by the learned counsel that when the issue requires recording of evidence, the same cannot be disposed of as a preliminary issue as per Order XIV Rule 2. Order XIV Rule 2 before the amendment read as follows:-

"2. Issues of law and of