JUDGMENT : Hon'ble Anil Kumar, J. - Heard Sri Anurag Narain, learned counsel for the petitioner and Sri Manish Kumar learned Counsel for opposite parties no. 1 and 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 10.2.2010 (Annexure no.1) and 25.11.2009 ( Annexure no.2) passed by opposite party no.1 and 2 respectively. 2. The facts, in brief, for disposal of the controversy involved in the present writ petition are that the opposite parties/ plaintiffs filed a suit for permanent injunction against the petitioner/defendant registered as Regular Suit no. 362 of 2000 in the Court of Civil Judge ( Junior Division), East, Hardoi. 3. In the said suit, petitioner/defendant filed written statement in the year 2002 and the trial court framed issues on 25.2.2002. 4. Issue no. 5 on the point of valuation of the suit and this issue was decided as preliminary issue. 5. After a gap of about nine years , plaintiff/defendant filed two applications numbered as paper no. 44C and 47C with a prayer that the additional issue be framed that the present suit is barred by principle of res judicata and it is prayed that this issue be decided as preliminary issue . 6. Needless to mention herein that the said applications were moved by the plaintiff/defendants that the plaintiff and his father Baburam had filed a Suit no. 213 of 1977 for permanent injunction against the petitioner/ defendant dismissed on 14.9.1979. The regular civil appeal no. 48 of 1979 filed against the aforesaid judgment was also dismissed on 6.9.1980. Thereafter, a second appeal no. 751 of 1980 was filed before this Court which was allowed. Feeling aggrieved with this judgment, Civil Appeal no. 212 of 1987 was filed before Hon'ble Supreme Court , which was allowed on 28.7.1999 and the judgment and decree passed by this Court was set aside and the judgment and decree passed by the appellate court as well as lower court were upheld. 7. On the said above factual backgrounds , the petitioner/defendants submits that the present suit filed by the plaintiff/ respondents is barred by principles of res judicata as provided under Section 11 CPC and after hearing the parties, opposite party no.2/ trial court had framed the additional issue i.e. issue no. 8 to the effect that whether the suit was barred by principles of res judicata . 8 to the effect that whether the suit was barred by principles of res judicata . However, the trial court/ opposite party no.2 further held that the said issue involves the mixed question of fact and law and therefore it could not be decided as preliminary issue vide order dated 25.11.2009. 8. Aggrieved by the same, the petitioner filed a revision ( Civil Revision No. 5 of 2010 Kanhaiya Lal and another Vs. Gangaram) dismissed vide order dated 10.2.2010 passed by opposite party no.1/ District Judge, Hardoi with the observations:- " Having heard the learned counsel for the parties and perusal of the record, it is not disputed that the present suit is pending since long more than about nine years and the trial has already commenced. The plaintiff has already led his evidence and in these circumstances the disposal of issue no.8 as a preliminary issue is not desirable. This issue could have been decided as a preliminary issue if it would have been framed at the time of framing issue and before the commencement of the trial. Moreover, the disposal of this issue would require certain amount of evidence. The parties have already entered into evidence and the plaintiff has already led his evidence. In these circumstances, the learned lower court was perfectly justified in coming to the conclusion that the issue would be decided at the time of final disposal of the suit. In view of this , I do not find any force in this revision and the same is liable to be rejected." 9. Learned counsel for the petitioner while assailing the impugned order submits that in view of the provisions as provided under Order 14 Rule 2 (2) CPC, the suit in question filed by the plaintiffs/respondents is barred by principle of res judicata as such the same is to be decided as preliminary issue by the opposite party no.2 and by means of impugned order dated 10.2.2002 it had not decided the issue no. 8 as preliminary issue and said action on his part as well as the order passed by the revisional court is arbitrary in nature and in contravention of law as laid down by this Court in the case of Aligarh Muslim University and others Vs. 8 as preliminary issue and said action on his part as well as the order passed by the revisional court is arbitrary in nature and in contravention of law as laid down by this Court in the case of Aligarh Muslim University and others Vs. 8th Additional District Judge, Aligarh and others wherein it has been held as under:- " In the courts in our country litigations are pouring in day in & day out and the courts must exercise their judicial prudence to dispose of the matters at the earliest and such objection of the present nature, as was raised by the defendants in the suit, should have been taken first without going at that stage to the exercise of calling for bundles of documents. I am not, at this stage, recording any judicial finding on the necessity or otherwise of the documents as I feel that the court of the first instance should have decided the preliminary issue on the eligibility of Miss. Gulshan Akhtar which could have ended the suit at that stage itself, if the objection was sustained." 10. The sole question which is to be decided in the instant case, is whether the issue No. 8 ought to have been decided as preliminary issue by the Courts below or not. 11. Order XIV, Rule 2(2), C.P.C. provides that 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, it thinks fit, postpone the settlement of the other issues until that issue has been determined, and may deal with the suit in accordance with the decision of that issue. Sub-rule (2) leaves discretion upon the Court. It is not mandatory on the Court to decide the question of the jurisdiction or other issues relating to the maintainability of the suit. Sub ­rule (I) of Rule 2 mandates a Court that 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. 12. Sub ­rule (I) of Rule 2 mandates a Court that 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. 12. The intention of the Legislature is that instead of prolonging the suit by first deciding a preliminary issue and thereafter deciding other issues, be avoided as far as possible, if all the issues are decided that may avoid unnecessary multiplicity of the proceedings in relation to deciding the preliminary issue. It is open for the Court, however, in some circumstances if it is apparently clear that the suit is not maintainable or barred by jurisdiction, their to dispose of such issue, it may decide such issues as preliminary issue. 13. In Smt. Fatima Bibi v. Board of Revenue, Allahabad, this Court held that if the trial Court had taken decision to consider the question of bar of suits under Section 49 of the Act at the time of the judgment and not as preliminary issue, the Court could not be said to have patently erred in not deciding the issue; preliminary issue, as it was within the discretion of the Court to try an issue of jurisdiction or bar of maintainability of the suit as a preliminary issue. The Court pointed out that sub-rule (1) Order XIV of C.P.C. the word `shall' has been used whereas in sub-rule (2) the word 'may' has been used which clearly indicates that it is discretion of the Court to decide any issue as preliminary issue. 14. In Dhirendranath Chandra v. Apurt Krishna Chandra, the question was whether the suit was barred by the provisions of Section 66(1) of the Code of Civil Procedure and such issue be decided as a preliminary issue it was held that it was not obligatory on the Court to try the issue as a preliminary issue as sub-rule (2) of Rule 2 of Order XIV leaves discretion on the Court to try an issue as preliminary issue. 15. In Usha Sales Ltd. v. Malcolm Gomes, the Court held that it is not obligatory on the Court to decide issue relating to the jurisdiction or legal bar to the suit as a preliminary issue 16. In the case of Sidh Nath and others Vs. 15. In Usha Sales Ltd. v. Malcolm Gomes, the Court held that it is not obligatory on the Court to decide issue relating to the jurisdiction or legal bar to the suit as a preliminary issue 16. In the case of Sidh Nath and others Vs. District Judge, Mirzapur and other this court after placing reliance in the case of M/s. Ramdayal Umraomal vs M/s. Pannalal Jagannathji, 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." 17. In the case of Shoib Ullah and others Vs. Bhartesh Chandra Jain and another this court has held as under :- "The first case referred to is a Full Bench decision of this Court in Sunni Cen­tral Waqf Board v. Gopal Singh Vishrad (FB) reported in After consider­ing the provisions of Rule 2 the Full Bench of this Court held that (Para 11): "Now it is discretionary for the Court to decide the issue of law as a preliminary is­sue or to decide it along with the other is­sues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue." The other case referred to is a Division Bench decision in the case of The Manager, Bettiah Estate v. Sri Bhagwatt Saran Singh. It was observed that (Para 12): "An issue of law can be decided as a pre­liminary only where it Is such that Its deci­sion does not necessitate Investigation into facts and it relates either to the jurisdiction of the Court or to the suit being barred un­der any prevailing law, and that, in the opin­ion of the Court the decision of the issue will result in the decision of the whole or a part of the suit. The discretion in this re­gard must always be exercised on the basis of sound judicial principles. However, even if an issue of law can be decided as a pre­liminary issue as aforesaid the Court is not always bound to decide it as a preliminary issue and can in its discretion, postpone its decision also along with other Issues whether of law or fact." 18. In the case of M/s. Ram Babu Singhal v. M/s. Digamber Parshad Kirti Parshad.. It has been held in "paragraphs 6" as under:-- "However, when the Court comes to the conclusion that the question of jurisdiction of the Court depends upon the detailed evi­dence of the parties which are almost iden­tical with the matter which relates to other issues in the suit and the Court comes to the conclusion that this could not be de­cided as a preliminary issue it cannot be said that the Court committed any error of jurisdiction or illegality. There is nothing in S. 21, which makes it mandatory for the Court to decide the question of jurisdiction as a preliminary issue." 19. In view of the above said facts and legal position which has been stated in the preceding paragraphs, and from a perusal of sub-rule 2 of Rule 2 Order 14 it is clear 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. 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. 20. 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 and the petitioner cannot derive any benefit from the judgments namely Aligarh Muslim University and others Vs. 8th Additional District Judge, Aligarh and others. 21. For the foregoing reasons, I do not find any infirmity or illegality in the impugned orders which are under challenge in the present case. 22. Accordingly, the present writ petition lacks merit and is dismissed. 23. No order as to costs.