ORDER S.P. Mehrotra, J.
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 gassed 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. 1124 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 10th April, 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 (Paragraph 12 of the said AIR) :
"12. ..................................................The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try any issue despite the provision contained in Sub-rule (2) of Rule 2 of Order 14 of the Code. The words "it may try" are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue."
11. Thus, even if the issue relates to the jurisdiction of the Court or to a bar to the suit created by law for the time being in force, still the Court has discretion under Order 14 Rule 2(2) to try the same as preliminary issue or not.
12. In the present case, the trial Court (Respondent No.2) exercised its discretion under Order 14 Rule 2(2) on relevant factors in refusing to try Issue No. 3 as preliminary issue. Respondent No. 1 rightly dismissed the revision against the order of the trial court. No interference in this writ petition is called for with the exercise of discretion by the trial Court.
13. Besides as noted above, various factual questions based on the evidence led by the parties will have to be gone into for deciding Issue No. 3 relating to limitation. Thus, Issue No. 3 is not a pure Issue of law, but is a mixed Issue of law and fact. Such an issue cannot be tried as preliminary issue.
14. In Ramdayal Umraomal v. Pannalal Jagannathji, AIR 1979 MP 153 (FB). a Full Bench of the Madhya Pradesh high Court laid down as follows (Paragraph 5 of the said AIR).
"5......................................... This provision makes it clear that the issue as to jurisdiction may be an issue of law or of fact or a mixed issue. The obligation to try the issue of jurisdiction as preliminary arises only when it is an issue of law. Issue of jurisdiction depending on question of fact and or mixed question of law and fact, must be decided on merits at one and the same time, along with other issues. If the Court finds, on a trial, on merits so far as this issue of jurisdiction goes, that the case is not cognizable by the Court because of want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper Court, and if, on the other hand, it finds that having regard to the nature of the suit, it is not cognizable by the class of Courts to which the Court belongs, the plaintiffs suit will have to be dismissed In its entirety Discretion to try preliminary issue of law relating to Jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence."
15. In view of the aforesaid discussions, the writ petition filed by the petitioners lacks merits, and the same is accordingly dismissed.