- (1.) IN this application the petitioner has prayed for quashing the order dated 25th February 2005 passed in Title Suit No. 29 of 2002 whereby the petitioners ' petition for deciding the issue of resjudicata, as a preliminary issue, has been rejected.
(2.) THE petitioners are the defendants in the suit. They filed written statement taking grounds, interalia, that the suit is barred by principle of resjudicata. Subsequently, a petition was filed on behalf of the defendants praying for deciding the said issue of resjudicata as a preliminary issue. Rejoinder to that petition was filed by the plaintiff -respondent. The Court below, considering the relevant facts and the provisions of law, came to the finding that since the said issue of resjudicata is a mixed issue of law as well as of fact and since the same can be decided on the basis of the evidence, it cannot be decided as a preliminary issue. The learned Court below while disposing of the said petition, also considered the decision of the Patna High Court reported in 2005(1) PLJR 342 as well as the provisions of Order XIV Rule 2 of the Code of Civil Procedure as amended by the Amending Act 104 of 1976 which runs thus: '' "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 provision 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 Equivalent Citation:2005 -JCR -3 -141 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." From a bare reading of the said provision, it appears that the said amended provision prescribes a general rule that the Court should pronounce judgment on all issues. However, if the Court is of the opinion that the suit may be disposed of on an issue of law, it may try that issue first if the issue relates to (i) jurisdiction of the Court; (ii) a bar to the suit created by any law for the time being in force. The first part of this rule, i.e., sub -rule (1) thus, makes it mandatory on the part of the Court to pronounce judgment on all issues and the second part, i.e., sub rule (2) has given a discretion to the Court trying the issues to take up any issue first, if the Court is of opinion that the case may be disposed of on an issue of law. In the instant case, after considering the facts and materials on record, the Court has decided to try all the issues and for that he has recorded the speaking reasons. I find no patent illegality or error in the impugned order so as to interfere in exercise of jurisdiction under Article 227 of the Constitution of India.
(3.) THIS writ application is, accordingly, dismissed.;