ORDER
Gobind Mohan Misra, J.
1. This revision application is directed against the order dated 21-4-1977 passed by the Subordinate Judge, 2nd Court, Dhanbad, in Title Suit No. 32 of 1975 refusing the prayer of the petitioner to decide the preliminary issue that the suit was barred under the provisions of Section 66 (1) of the Civil P. C. (hereinafter referred to as “the Code”).
2. It is not disputed that opposite party Nos. 1 to 4 and the petitioner are full brothers, being the sons of late Sushil Kumar Chandra whose father was Indra Narain Chandra. It is also not disputed that Sushil Kumar Chandra died during the lifetime of his father, Indranarain Chandra. Opposite party Nos. 1 to 4 instituted Title Suit No. 32 of 1975 for partition of their 4/5th share in the property mentioned in Schedule A to the plaint. The remaining l/5th share, according to the opposite party-plaintiffs, belonging to defendant-petitioner. It is also not disputed that the suit property had been purchased at a Court sale in the name of the petitioner (defendant No. 1). It was the further case of the plaintiffs-opposite party that the suit property had been purchased by Indra Narain Chandra, the grandfather of the petitioner in the name of the petitioner (defendant No. 1) since he was at that time the only other adult male member in the family. It was also asserted by the plaintiffs opposite party that the suit property was joint family property and after the death of Indra Narain Chandra in 1931 has been all along in possession of the five brothers, namely, the plaintiffs (opposite party Nos. 1 to 4) and petitioner-defendant No. 1.
3. In his written statement, the defendant-petitioner denied the aforesaid allegations and resisted the claim of the plaintiffs, amongst other grounds, on the ground that they were not entitled to maintain the suit in view of the provisions of Section 66 (1) of the Code. One of the issues framed in the suit was whether the suit was barred under the provisions of Section 66 (1) of the Code. The petitioner-defendant No. 1 by an application dated 21-4-1977 prayed for determination of the above issue as a preliminary issue in the suit. The prayer of the petitioner-defendant No. 1 was disallowed by the learned Subordinate
Judge by the impugned order. Defers
dant No. 1-petitioner has, therefore, come up in revision before this Court,
4. Learned counsel for the petitioner has contended that the suit property was admittedly purchased in a court sale in the name of the defendant (petitioner) alone and it was he, who, held the sale certificate granted by the Court in respect of the suit property. Obvious-ly, therefore, defendant No. 1 alone was the certified purchaser within the meaning of Section 66 (1) of the Code and the plaintiffs-opposite party could not, therefore, lay any claim to the property on the ground that the purchase had been made by Indra Narain Chandra through whom the plaintiffs’ claim. According to the learned counsel for the petitioner such a claim of the plaintiffs-opposite party was barred under the specific provisions of Section 66 (1) of the Code. In the circumstances, according to the learned counsel for the petitioner, the Court below ought to have decided preliminarily whether the suit was barred under the provisions of Section 66 (1) of the Code in accordance with the provisions of Sub-rule (2) of Rule 2 of Order XIV of the Code.
5. Mr. S. K. Mazumdar, learned counsel appearing on behalf of the opposite party has, on the other hand, contended that the impugned order does not require any interference firstly because the provisions of Sub-rule (2) of Rule 2 of the Order XIV of the Code are not mandatory and secondly according to the facts averred in the plaint, the plaintiffs-opposite parties had laid claim to the suit property not merely on the ground that the property had been purchased on behalf of the certified purchaser, defendant No. 1 as also on behalf of the other grandsons of Indra Narain Chandra. The plaintiffs’ claim was mainly based on the allegation that the ac-quisition of the property was on behalf of the joint family and even after the death of the purchaser Indra Narain Chandra, the property was all along in joint possession of the petitioner-defendant No. 1 and the plaintiffs-opposite parties since 1941 i.e. more than 12 years before the institution of the suit, In the circumstances, according to the learned counsel, the plaintiffs’ claim was not one which was envisaged by the provisions of Section66 (1) of the Code and as such the provisions of Sub-rule (2) of Rule 2 of Order XIV of the Code will not be applicable to such case.
6. It may be stated at the outset that it is not necessary nor desirable to express my opinion on the question whether or not the suit out of which this application arises will be barred under the provisions of Section 66 (1) of the Code. It appears from the impugned order that such a plea has been taken in the written statement of the defendant-petitioner. If such a point has been raised it will have to be decided by the trial court along with other issues that might arise on the pleadings of the parties. But the question that has to be answered in the present case is whether in refusing to decide this point as a preliminary issue before trying and deciding other issues the learned trying Judge has committed an error to justify interference by this Court in exercise of powers of revision. For examining this aspect of the matter it will be necessary to read the provisions of Rule 2 of Order XIV of the Code which runs as follows:–
“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 on law and facts 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."
A plain reading of Rule 2 will show that ordinarily even if the case may be disposed of on a preliminary issue, the Court is bound to pronounce judgment on all issues. This ordinary rule is subject to only one exception which has been provided in Sub-rule (2) according to which if the case or any part thereof may be disposed of on issue of law only and if that issue of law relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force the court may try such issue first. It is, therefore, clear that a departure from the ordinary rule provided in Sub-rule (1) of Rule 2 can be made by the Court only in the circumstances
mentioned in Sub-rule (2) and even in these circumstances the Court has only a discretion that it may try an issue of law relating to the points mentioned in Clauses (a) and (b) of Sub-rule (2) as a preliminary issue before framing other issues. There is, however, nothing in Sub-rule (2) which in my opinion makes it obligatory for the Court to try such an issue first in all cases. If, therefore, the Court is of opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refuses to try and decide any issue of law even on the points referred to in Clauses (a) and (b) of Sub-rule (2) as a preliminary issue before taking up other issues. I do not think it has committed an error touching jurisdiction. In the impugned order the court below is of opinion that it is more expedient to try the issue regarding bar under Section 66 (1) of the Code along with other issues and the suit is also likely to be disposed of within a short period. It appears from the facts placed before me at the time of argument that for deciding either the point whether the suit is barred under Section 66 (1) of the Code or the point whether the plaintiff’s are entitled to claim partition as prayed more or less the very same facts and circumstances have to be considered according to the averments in the pleadings and it may be more convenient to decide both these points together. At any rate, however, I am not satisfied that in refusing to decide the issue regarding bar under Section 66 (1) of the Code as a preliminary issue the Court below has committed any error of jurisdiction which may justify interference of this Court in exercise of its revisional jurisdiction. The application is, therefore, dismissed but in the circumstances, there will be no order, as to costs.