The main legal point established in the judgment is that the court has discretion under Order 14 Rule 2 of the Code of Civil Procedure to try an issue as a preliminary issue or not, even if it relates to the jurisdiction of the court or a bar to the suit created by law for the time being in force.

( 1 ) THIS writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, challenging the order dated 9-1-2002 passed by respondent No. 2 (Annexure 3 to the writ petition) and the order dated 26-2-2002 passed by respondent No. 1 (Annexure 4 to the writ petition ).

( 2 ) IT appears that the plaintiff respondent No. 3 filed a suit being Suit No. l 124 of 1988 against the defendants-petitioners, inter alia, for a decree for specific performance of the agreement dated 10-2-1976. A written statement dated 10/04/1996 was filed on behalf of the defendants petitioners wherein, inter alia, an objection was raised that the suit was barred by limitation.

( 3 ) IT further appears that Issue No. 3 has been framed on the question of limitation. The defendants-petitioners filed an application No. 126 GA praying that Issue No. 3 be decided as preliminary issue. The trial Court (Respondent No. 2) by its order dated 9-1-2002 rejected the said application No. 126-Ga filed by the defendants-petitioners.

( 4 ) THEREUPON, the defendants-petitioners filed a revision being Civil Revision No. 20 of 2002. By the order dated 26-2-2002, the learned District Judge, Mirzapur (Respondent No. 1) dismissed the said Civil Revision No. 20 of 2002. The learned District Judge, inter alia, observed that the evidence in the suit had already been closed, and the suit being of the year 1988, it was just and proper that all the issues be decided together at the same time.

( 5 ) I have heard learned counsel for the petitioners and perused the record.

( 6 ) LEARNED counsel for the petitioners submits that Issue No. 3 being one in regard to the question of limitation should have been decided as preliminary issue. He refers to the provisions of Order 14 Rule 2 (2) of the Code of Civil Procedure.

( 7 ) HAVING considered the submissions made by the learned counsel for the petitioners, I am of the opinion that the Courts below have not committed any illegality in passing the impugned orders. A perusal of the pleadings of the parties and the impugned orders shows that various factual questions based on the evidence led by the parties will have to be gone into for deciding Issue No. 3. Moreover, as observed by the respondent No. 1, since the suit is of the year 1988 and the evidence has already been closed, it would be proper that all the issues are decided at the same time.

( 8 ) COMING to the submission of the learned counsel for the petitioners in regard to Order 14 Rule 2 (2) of the Code of Civil Procedure, it is pertinent to reproduce the provisions of Order 14 Rule 2 :"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. "

( 9 ) A perusal of sub-rule (2) of Rule 2 of Order 14 shows that an issue of law may be tried as a preliminary issue provided it relates to the jurisdiction of the Court or to a bar to the suit created by law for the time being in force. However, the said provision gives discretion to the Court to try an issue as preliminary issue or not. The Court is not duty bound to decide any issue as preliminary issue. This is evident from the words "it may try" occurring in the said provision.

( 10 ) IN Usha Sales Ltd. v. Malcolm Gomes, AIR 1984 Bombay 60, the Bombay High Court laid down as follows :"12. . . . . . .