SOBHAG MAL JAIN, J. - (1.) THE petitioner has challenged in this writ petition the order of the Munsif, Jodhpur dated the 28th January, 1983 deciding issues Nos. 7,8 and 9 as preliminary issues in election petition No. 4/82 pending in his court.
(2.) THE only grievance made in the present writ petition is that issues Nos. 7, 8 and 9 should not have been decided in piecemeal as preliminary issues, as it is contrary to the express provisions contained in O. 14 r. 2 C. P. C. The procedure for challenging an election as Sarpanch of a Panchayat is contained in Rules 78 to 86 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. Rule 83 provides that the procedure provided in the Code of Civil Procedure, 1980 in regard to suits shall, in so far as it can be made applicable, be followed in the hearing of the election petition. O. 14 r. 2 of Code of Civil Procedure reads thus :- " (2) (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. " The amendments in the Civil Procedure Code made in 1976 has changed the position regarding disposal of issues as preliminary issues. Considering the effect of amendments made in 1976, the Bombay High Court in Usha Sales Ltd. Vs. Malcolm Gomes (1) has summarised the position thus:- "11. From the above it is easily seen that there is an obligation cast upon the Court that even though a case may be disposed of on a preliminary issue the Courts shall subject to the provision of sub-rule (2) pronounce judgment on all issues In other words, the obligation to decide a question of law as a preliminary issue if that issue disposes of the case or part of the case is no longer there. Similarly, the discretion to decide any other issue as a preliminary issue has been taken away totally from the Court. On the other hand, a duty is cast upon the Court that it must proceed to hear all the issues and pronounce judgment on the same. There is, however, a small exception carved out to the above provision. 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-r. (2) of R. 2 of O 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. " It is apparent that now after the amendment the Court is required to pronounce judgment on all issues Only such issues of law which relate to- (I) the jurisdiction of the court; or (2) a bar to the suit created by any law for the time being in force, can be tried and disposed of as preliminary issue. If these conditions are not present, the postponement of other issues is not permissible and the court has to decide all the issues involved in the case. In the present case there is no dispute that issues Nos. 7 to 9 do not fall either under clause (as) or clause (b) of sub-rule (2) of Order 14 rule 2 C. P. C. The trial court has not stated that the present case could be disposed of on any of the aforesaid issues. In the absence of an issue which relate to the jurisdiction of the court or relates to a bar to the suit itself created by any law, the court could not postpone the settlement of other issues The learned Magistrate was clearly in error in deciding issues Nos. 7 to 9 as preliminary issues as the conditions of Order 14 rule 2 (2) C. P. C. were not fulfilled. The result is that the writ petition is allowed. The order dated the 28th January, 1983 passed by the Munsif and Judicial Magistrate, Jodhpur in election petition No. 4/82 is quashed and the learned Magistrate is directed to proceed with the election petition, hear all the issues and pronounce judgment on the same in accordance with law. There will be no order as to costs. .;