Amitava Lala, J. - (1.) It appears to this Court that this First Miscellaneous Appeal has been preferred from an order of remand passed by the First Appellate Court on 16th December, 1999.
(2.) The moot point of deciding the issue is whether the question of res judicata can be decided as a preliminary issue as per Order 14 Rule 2(1) of the Civil Procedure Code or it has to be decided alongwith other issues. Admittedly, there was a prior partition suit in which a final decree was passed in 1953 on the basis of the findings of the Arbitrators. Contesting parties have enjoyed the fruits of such decree till the date of filing the subsequent suits in the year 1991 for declaration to all such properties as secular in place and stead of Debuttor properties.
(3.) The learned Judge of Court of First Instance held that as because that suit is barred by principles of res judicata, no other issues are to be discussed for the purpose of coming to conclusion which was not accepted by the First Appellate Court and remanded the matter back. The relevant portion of the Court of First Instance is that as per Order 14 Rule 2 of the C.P.C., the Court pronounced judgement on all issues notwithstanding that a case may be disposed of on a preliminary issue. Therefore the meaning is that a Court can decide a preliminary issue. On that score the Appellate Court's verdict is that though the ordinary rule is to pronounce judgement on all issues, liberty has been given to the Court by Order 14 Rule 2(2) to pick up the same issues of law if the Court is of the opinion that a case or part of the case may be disposed of only on those issues but the same will be restricted only to the jurisdictional matters when the particular issues is barred by law then in force.;