JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri R.N. Singh, Advocate, for appellants and Sri P.K. Sinha, Advocate, for respondents. 2. This is defendant’s Second Appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as “Code”). Plaintiffs Sri Ram Dutt Sharma and his wife Smt. Saroj, instituted Original Suit No. 579 of 1993, impleading New Bank of India, Baghpat, Sri Chhote Lal Sharma, son of Sri Khacheru Singh and Smt. Saroj, wife of Sri Shiv Charan as defendants. The relief sought in the aforesaid suit was a mandatory injunction directing defendant No. 1 to auction Truck No. UHN 1077, belong to defendant Nos. 2 and 3, and in possession of defendant-Bank towards security/guarantee against the amount of loan, advanced to defendant Nos. 2 and 3, and realize outstanding dues, before encashing Fixed Deposit Receipts (hereinafter referred to as “FDRs”) of plaintiffs, lying with defendant-Bank. 3. The plaint case set up is that defendant Nos. 2 and 3 are running a transport business. They purchased a new Truck in 1985 bearing Registration Number UHN 1077. The financial assistance in the aforesaid transaction was tendered by the Bank, advancing a loan of Rs. 1,50,000/-, whereagainst Truck itself was hypothecated. Besides, the plaintiffs’ FDRs of Rs. 10,000/- and 70,000/- were pledged in security for a period of three years or till repayment of loan amount, whichever is earlier. There appears to be some default towards repayment of loan amount, on the part of defendant Nos. 2 and 3, but defendant No. 1, instead of realizing defaulted amount from defendant Nos. 2 and 3, by sale/auction of mortgaged vehicle, proceeded to encash FDRs of plaintiffs lying in security with the Bank, hence the suit. 4. Suit was contested by defendant No. 1, i.e., Punjab National Bank (hereinafter referred to as “PNB”) stating that the proceeds of FDRs have already been adjusted against loan amount and there remains nothing to be done by it. The basic facts of advancement of loan to defendant Nos. 2 and 3 were not disputed but it is said that loan amount of Rs. 1,58,000/- was advanced on 12.2.1985, for purchase of 1210 SE 42 Truck. Sri Har Narain Sharma and Shiv Dutt Sharma stood guarantors in the loan account. The plaintiffs pledged their FDRs to the Bank. Liability of plaintiffs and defendant Nos. 2 and 3 is joint, several and co-extensive. 1,58,000/- was advanced on 12.2.1985, for purchase of 1210 SE 42 Truck. Sri Har Narain Sharma and Shiv Dutt Sharma stood guarantors in the loan account. The plaintiffs pledged their FDRs to the Bank. Liability of plaintiffs and defendant Nos. 2 and 3 is joint, several and co-extensive. The Bank is entitled to recover the amount in whatever manner it is convenient and easily recoverable. The two FDRs, pledged, were of Rs. 10,000/- (FDR No. 271013/2/82 dated 12.1.1982) with maturity value of Rs. 27,786/-, and FDR No. 027562/74/81 dated 17.7.1981 of Rs. 7,000/- with its maturity value of Rs. 20,407/- on 22.2.1983, were adjusted against loan amount. In total Rs. 48,193/- was adjusted against the loan amount and there remained nothing whereagainst any relief can be asked for by the plaintiffs. 5. Thereafter plaint was amended and a relief was inserted that the maturity amount of two FDRs should be recovered from the Bank and paid to the plaintiffs. 6. Trial Court decreed the suit vide judgment and decree dated 21.5.2003, directing defendant-Bank to pay Rs. 48,193/- alongwith interest, as per the rates provided in Rules, within one month. Thereagainst defendant No. 1 came in Civil Appeal No. 129 of 2003 wherein vide judgment and decree dated 18.2.2009, Trial Court’s judgement and decree has been modified, partly, by directing Bank to pay Rs. 48,193/-, treating the same to be FDR with effect from 22.2.2003 and pay admissible interest thereupon. The defendant No. 1, thus, has came up in this appeal. 7. The substantial questions of law, arising in this case, which, require consideration by this Court, are: (1) Whether plaintiff-respondents 1 and 2 stood discharged from their status as guarantor/surety after expiry of three years from the date, FDRs were pledged with Bank as security, against the loan amount, in absence of any overt or otherwise action on the part of plaintiff-respondents 1 and 2 to continue their liability after three years. (2) Whether the appellant-Bank was entitled to treat continuing guarantee/surety of plaintiff-respondent Nos. 1 and 2, after expiry of period of three years and their action was consistent with Sections 133, 135 and 139 of the (Indian) Contract Act, 1872 (hereinafter referred to as “IC Act, 1872”)? (3) Whether the Courts below are justified in taking the view that the alleged FDRs cannot be held as surety and continuing guarantee under Section 129 of IC Act, 1872? (3) Whether the Courts below are justified in taking the view that the alleged FDRs cannot be held as surety and continuing guarantee under Section 129 of IC Act, 1872? (4) Whether the Courts below are justified in holding that the Bank was not entitled to adjust/redeem loan amount by adjusting maturity value of FDRs in question, pledged to them by plaintiff-respondent Nos. 1 and 2. (5) Whether the placement of FDRs as security against loan amount, constituted “contract of guarantee” or “contract of pledge”? (6) Whether the suit for recovery of maturity proceeds of FDRs was barred by limitation? 8. Sri R.N. Singh, learned counsel for the Bank, vehemently contended that the Courts below have misconstrued the letter dated 4.4.1985, Paper No. 46-Ka, containing the terms and conditions of pledge of FDRs of plaintiff-respondent Nos. 1 and 2 and have illegally held that the same does not amount to furnishing security of re-payment of loan to the Bank. He argued that letter dated 4.4.1985 as well as endorsement on FDRs by plaintiffs constituted and created a right in favour of Bank to appropriate proceeds of FDRs against outstanding loan amount, in case of default by principal borrower, i.e., respondent Nos. 3 and 4. He urged that terms and conditions, which are part of a contract or a document, could not have been explained or contradicted by oral evidence, and, the Courts below, relying on oral evidence tendered by respondent Nos. 1 and 2, contrary to the stipulation contained in the documentary evidence, have clearly erred in law and it was inconsistent with Sections 91 and 92 of (Indian) Evidence Act, 1972 (hereinafter referred to as “IE Act, 1972”). He lastly submitted that Courts below have completely misdirected themselves by holding that pledge of FDRs was only for a period of three years and their observations and findings are also contrary to law contained in Sections 172, 176 and 177 of the IC Act, 1872. 9. Sri P.K. Sinha, learned counsel appearing for plaintiff-respondent Nos. 1 and 2, on the contrary, argued that unilateral extension of security or guarantee is not permissible in law. Plaintiffs have never extended their security or pledge of FDRs beyond period of three years, which was initially agreed between the parties. 9. Sri P.K. Sinha, learned counsel appearing for plaintiff-respondent Nos. 1 and 2, on the contrary, argued that unilateral extension of security or guarantee is not permissible in law. Plaintiffs have never extended their security or pledge of FDRs beyond period of three years, which was initially agreed between the parties. The mere fact that FDRs were renewed from time to time would not extend liability of plaintiffs as surety or guarantor against the loan amount. The day on which Bank claimed to have adjusted maturity proceeds of FDRs, plaintiffs did not stand either as guarantor or surety in respect of amount of loan or defaulted money, which the Bank was entitled to recover from defendant-respondent Nos. 3 and 4 and, therefore, Courts below have rightly decreed the suit by means of impugned judgements. 10. First of all, it would be necessary to determine the nature of contract between the plaintiffs and the Bank. The contract between the Bank and respondents 3 and 4 was admittedly that of loaner and loanee. A “contract of guarantee” is defined in Section 126 of IC Act, 1872. It says that a “contract of guarantee” is a contract to perform the promise or discharge liability of a third person in case of his default. The person who gives the guarantee is called “surety”, person in respect of whose default the guarantee is given is called the “principal debtor” and the person to whom the guarantee is given is called the “creditor”. In case this Court finds that the plaintiffs entered into a contract of guarantee with the Bank in terms of Section 126 of IC Act, 1872 the plaintiffs would be “surety”, respondents 3 and 4 would be the “principal debtor”, and the Bank would be “the creditor”. A guarantee, therefore, is an accessory. It is essentially a contract of accessory nature being always ancillary and subsidiary to some other contract or liability on which it is founded without support of which it must fail. The distinction between the “contract of guarantee” and “contract of indemnity” comes out from the definitions of two. A guarantee, therefore, is an accessory. It is essentially a contract of accessory nature being always ancillary and subsidiary to some other contract or liability on which it is founded without support of which it must fail. The distinction between the “contract of guarantee” and “contract of indemnity” comes out from the definitions of two. The phrase “contract of indemnity” is defined in Section 124 of IC Act, 1872 which says that a contract by which one party promises to save the other from loss caused to him by the conduct of promiser himself or by the conduct of any other person is called “contract of indemnity”. One of the apparent distinction between two is that a “contract of guarantee” requires concurrence of three persons, namely, the principal debtor, surety and the creditor, while “contract of indemnity” is a contract between two parties and promiser enters into such contract with other party. In other words, a person who is party to a contract, if executes a promise to other party to save him from loss on account of promiser’s conduct or by the conduct of any other person, it is a “contract of indemnity”, while for the purpose of “contract of guarantee”, it requires presence of three parties at least. 11. “Surety” is always liable to the extent of precise terms of his commitment and not beyond that. In the case of “contract of guarantee”, Section 128 of IC Act, 1872 says that the liability of surety is co-extensive with that of principal debtor unless it is provided otherwise by the contract. In State of Maharashtra v. M. N. Kaul, AIR 1967 SC 1634 , it has been held that a guarantor cannot be made liable beyond the terms of agreement. 12. In the light of distinction between the “contract of indemnity” and “contract of guarantee”, I have no manner of doubt that the contract between the Bank and the plaintiffs was a “contract of guarantee”. In case the creditor finds that principal debtor has committed default as a result whereof liability has accrued, it is not necessary that the creditor must proceed first against the principal debtor or to give a notice to it but the creditor can directly proceed against the surety. 13. In Hukumchand Insurance Co. In case the creditor finds that principal debtor has committed default as a result whereof liability has accrued, it is not necessary that the creditor must proceed first against the principal debtor or to give a notice to it but the creditor can directly proceed against the surety. 13. In Hukumchand Insurance Co. Ltd. v. The Bank of Baroda and others, AIR 1977 Kant 204, it was held that liability of principal debtor and surety being co-extensive are really separate though arising out of the same transaction. The guarantor alone can be proceeded against or be sued, as the case may be, without so proceeding against the principal debtor. The condition precedent is that the default on the part of principal debtor must exist. 14. The above decision has been followed by this Court also in U.P. Financial Corporation v. Garlon Polyfeb Industries and others, AIR 2001 All 286 . 15. The liability of surety, however, may cease if there is any variation in terms of contract between the creditor and the principal debtor, without consent of surety, and such variation shall discharge surety in respect of transactions subsequent to the variation vide Section 133 of IC Act, 1872. Similarly, if the creditor discharges the principal debtor, the legal consequence would be that surety would also stand discharged vide Section 134 of IC Act, 1872. Similarly, if there is a contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor(s), such act shall result in discharge of the surety, unless surety assents to such contract of variation etc. This is what is provided in Section 135 of IC Act, 1872. 16. The next question would be the nature of this placement of FDRs in the Bank. It has to be examined as to what is the nature of relation between the Bank and the customer in respect to such deposits. 17. In the present case, there was not a simple case of contract of guarantee between the plaintiffs and Bank but in furtherance thereof, the plaintiffs pledged FDRs with the Bank, duly discharged in favour of Bank, so as to entitle the Bank to realize defaulted amount by adjusting value of FDRs, at the relevant time against the defaulted amount. 18. In the present case, there was not a simple case of contract of guarantee between the plaintiffs and Bank but in furtherance thereof, the plaintiffs pledged FDRs with the Bank, duly discharged in favour of Bank, so as to entitle the Bank to realize defaulted amount by adjusting value of FDRs, at the relevant time against the defaulted amount. 18. In Tilendra Nath Mahanta v. United Bank of India and others, AIR 2002 Gau 1 , a passage from Paget’s “Law of Banking”, 9th edition, at page 411, has been quoted wherein it is said that the fixed deposit is one of the three bank deposits and current deposits. Money lodged with bank as fixed deposits stricto jure is a loan to the bank. The banker in connection with the ‘fixed deposit’, therefore is a “debtor”. The depositor accordingly would cease to be the owner of money in fixed deposit and it becomes the money of bank, enabling the bank to do as the bank likes, subject however, to the obligation of re-payment of the said amount on maturity. To the same effect is the view taken by Kerala High Court in Union Bank of India v. K.V. Venugopalan and others, AIR 1990 Ker 223 and Madhya Pradesh High Court in State Bank of India v. Smt. Goutmi Devi Gupta and others, AIR 2002 MP 81 . 19. In Syndicate Bank v. Vijay Kumar, AIR 1992 SC 1066 , it has been held that with respect to negotiable instruments including FDRs which are remitted to the Bank by the customer, the Bank can exercise banker’s lien. The FDRs have been held “goods” within the meaning of Section 176 of IC Act, 1872 and Section 2 (7) of Sale of Goods Act, 1952 in State Bank of India v. Smt. Neela Ashok Naik and another, AIR 2000 Bom 151 . The bank, in case, the contingency to realize the amount from surety has arisen, can do so by adjusting the amount of FDRs against the defaulted money. 20. These legal principles have to be followed subject to the terms of the contract between the surety and creditor i.e. the Bank and plaintiffs-respondent Nos. 1 and 2. The initial term of guarantee/surety was alleged to be three years or earlier thereto till the entire loan money is paid. The loan agreement was executed in 1985. 20. These legal principles have to be followed subject to the terms of the contract between the surety and creditor i.e. the Bank and plaintiffs-respondent Nos. 1 and 2. The initial term of guarantee/surety was alleged to be three years or earlier thereto till the entire loan money is paid. The loan agreement was executed in 1985. Mere renewal of FDRs does not mean renewal of contract of guarantee between the surety and creditor. After the expiry of period of contract of guarantee, there was no occasion for the Bank to proceed to retain FDRs of plaintiffs-surety as a collateral guarantee against the loan amount. Lower Appellate Court, in my view, has rightly read the averments contained in para 3 and 4 of plaint vis-à-vis the contract between the surety and the creditor that the renewal of FDRs, if mature before payment, is referable to a period earlier to three years from the date of such contract and not to the extent of period of contract beyond three years. To that extent, there was a clear averment that contract was only for three years or earlier thereto when the entire loan amount is paid. The word “earlier” rules out any possibility of a continuing contract of guarantee beyond three years. Collateral security of FDRs was, therefore, available to the Bank for a period of three years only and not beyond that, unless consented by surety, i.e. plaintiffs. Admittedly, no such consent was obtained by plaintiffs-surety and, on the contrary, the Bank on its own gave extension to the principal debtor in the matter of re-payment of loan amount. 21. However, the matter does not rest here. A letter dated 4.4.1985 (Paper No. 46-Ka) has been made sheet anchor by the Bank to argue that therein surety has agreed to continue with his FDRs amount as collateral security till the entire loan amount is re-paid. It is submitted that there is no period or time mentioned therein and, therefore, the Lower Appellate Court has clearly erred in law by restricting contract of guarantee only for a period of three years. Learned counsel for Bank also drew my attention to discharged FDRs pledged by the surety in favour of Bank. It is submitted that there is no period or time mentioned therein and, therefore, the Lower Appellate Court has clearly erred in law by restricting contract of guarantee only for a period of three years. Learned counsel for Bank also drew my attention to discharged FDRs pledged by the surety in favour of Bank. Having gone through the aforesaid letter dated 4.4.1985 and also the judgment of Lower Appellate Court, whether letter dated 4.4.1985 was made a part of contract of guarantee or not between the Bank and Surety, is it an offer by plaintiff to the Bank for advancing a loan of Rs. 1,58,000/- to Sri Chhotey Lal and Smt. Saroj Devi; whether the contract of guarantee was executed making terms of the aforesaid letter, to be part of the said contract, whether the terms of letter were accepted by the Bank in its entirety, or, Bank in the ultimate acceptance of such offer, made certain changes and such counter offer having been accepted by the plaintiff formed contract of guarantee, are some of the aspects on which I find that the Courts below have not looked into the matter at all. If plaintiffs’ letter dated 4.4.1985 itself has been accepted as such and it formed part of contract between the parties, then what has been held by Lower Appellate Court cannot hold good. Similarly, Trial Court in decreeing the suit has not been right in holding that the Bank, first should have proceeded against principal debtor or hypothecated goods and not directly against surety by realizing the amount of FDRs pledged with the Bank, as collateral security by the plaintiffs. The approach of Courts below in the case in hand is not correct and the real aspects have not been examined correctly. In these facts and circumstances, I find that judgments impugned in this Second Appeal cannot sustain. 22. In the result, impugned judgment and decree dated 21.5.2003 passed by Trial Court in Original Suit No. 579 of 1993 and judgment and decree dated 4.2.2009 passed by Lower Appellate Court in First Appeal No. 129 of 2003 are set aside. The matter is remanded to Trial Court to treat the suit as originally registered and decide the same afresh in the light of the observations made above and in accordance with law. 23. The appeal is, accordingly, allowed with cost throughout. The matter is remanded to Trial Court to treat the suit as originally registered and decide the same afresh in the light of the observations made above and in accordance with law. 23. The appeal is, accordingly, allowed with cost throughout. [2013(8) ADJ 762] ALLAHABAD HIGH COURT BEFORE : RAN VIJAI SINGH, J. SURENDRA PRASAD RAI ....Petitioner Versus ADDITIONAL COMMISSIONER (ADMINISTRATION) VARANASI DIVISION, VARANASI AND OTHERS .....Respondents (Civil Misc. Writ Petition No. 24778 of 2013, decided on 2nd May, 2013) (A) Code of Civil Procedure, 1908—Order XIV, Rule 2(2)—U.P. Consolidation of Holdings Act, 1953—Section 49—Jurisdiction—Question of—Whether it is mandatory to be decided at first—Provisions contained in Rule 2(2) of Order XIV appears to be directory—Where answer to question of jurisdiction depends on investigation of facts—Court may decide question of jurisdiction later—Alongwith all other issues, after receipt of sufficient material—Whether suit is barred under Section 49—On facts it is to be decided after leading of evidence—As a plea of fraud raised by plaintiff. [Paras 2 and 8] (B) Interpretation of Statute—Mandatory—Or Directory—Particular provision is to be looked while keeping in view the intention of Legislature. [Para 14] © Constitution of India, 1950—Article 226—Interpretation of Statute—When two views are possible—Interference with—Where one view has been taken by Court—It is not amenable for interference under Article 226—Unless there is jurisdictional error—Or conclusion is drawn ignoring statute or relevant material on record. [Para 15] Result; Petition Dismissed. Cases cited : 1993 All CJ 216 (DB) (All) (Para 3); AIR 1993 All 2 (DB); AIR 1999 All 304 (Para 4); AIR 1952 SC 181 (Para 9); AIR 1961 SC 751 (Para 10); AIR 1965 SC 895 ; AIR 1975 SC 2190 (Para 11); AIR 1980 SC 303 (Para 12); (1999) 1 SCC 354 ; AIR 2002 SC 2031 ; (2003) 3 SCC 433 ; AIR 2003 SC 511 ; AIR 2004 SC 2036 (Para 13). Counsel : Shamimul Hasnain and Dhirendra Kumar Srivastava for the Petitioner; C.S.C., Mahesh Narain Mishra and P.K. Rai for the Respondents. JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Shamimul Hasnain, learned counsel for the petitioner, Sri R.N.Singh, learned Senior Counsel assisted by Sri P.K.Rai, learned counsel appearing for the respondent No. 3, learned Standing Counsel and learned counsel for the Gaon Sabha. 2. JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Shamimul Hasnain, learned counsel for the petitioner, Sri R.N.Singh, learned Senior Counsel assisted by Sri P.K.Rai, learned counsel appearing for the respondent No. 3, learned Standing Counsel and learned counsel for the Gaon Sabha. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 4.4.2012 passed by Sub-Divisional Magistrate Chakia, District Chandauli (the respondent No. 2) and judgment and order dated 30.1.2013 passed by Additional Commissioner (Administration) Varanasi Division Varanasi (the respondent No. 1). Vide order dated 4.4.2012, the petitioner’s application to decide the Issue Nos. 6 and 7 as a preliminary has been rejected on the ground that under the facts and circumstances of the case it be decided alongwith remaining issues. Whereas vide order dated 30.1.2013, the petitioner’s Revision No. 14 of 2012 filed against the order dated 4.4.2012 has been dismissed. Out of these two issues one issue was relating to the under valuation of the suit and payment insufficient Court fee and another was with regard to bar of jurisdiction of civil Court under Section 49 of U.P. Consolidation of Holdings Act, 1953. 3. Sri Hasnain has very vehemently contended that when the question of jurisdiction is raised, it should be decided as a preliminary issue for the reason that if it is held that the Court has no jurisdiction to proceed with the matter, the proceeding will come to an end and the valuable time of the Court as well as litigant will be saved. In support of his submissions, he has placed reliance upon the Division Bench judgment of this Court in Mrs. Shahnaz Husain v. Mohd. Yunus, 1993 All CJ 216. 4. Refuting the submissions of learned counsel for the petitioner, Sri R.N.Singh,learned counsel appearing for the respondent No. 3 submitted that Order 14 of Code of Civil Procedure has been amended in the year 1976 and in view of Sub-rule 2 of Order 14, all the issues have to be decided together. He has also contended that there can be no straight jacket formula to decide the question of jurisdiction at the first instance and it always depend upon the discretion of the Court either to decide the question of jurisdiction as a preliminary issue or to decide the same alongwith other issues. He has also contended that there can be no straight jacket formula to decide the question of jurisdiction at the first instance and it always depend upon the discretion of the Court either to decide the question of jurisdiction as a preliminary issue or to decide the same alongwith other issues. In support of his submissions, he has placed reliance upon another Division Bench decision of this Court in Manager Bettiah Estate v. Bhagwati Saran Singh, AIR 1993 All 2 . Particular attention has been drawn towards para 12 of the aforesaid judgment. Reliance has also been placed upon the judgment of this Court in Mithlesh Kumari and others v. Gaon Sabha, Kishanpurand others, AIR 1999 All 304 . Learned Senior Counsel has also submitted that in this phenomenon once the discretion has been exercised by the Court, there can be hardly any ground to interfere with the matter under Article 226 of the Constitution of India as the writ petitions are not entertained against an order exercising the discretion this way or that way. For entertaining the writ petition there must be some statutory breach or jurisdictional error and in absence of that no interference should be made with the orders passed by the Courts below. 5. I have heard learned counsel for the parties and perused the record. From the perusal of the record, it transpires that as many as 13 issues were framed by the Court below. The issue Nos. 6 and 7 are reproduced hereinunder 6- D;k okn nQk 49 tks0p0v0 ls ckf/kr gS\ 7- D;k okn dk ewY;kadu de fd;k x;k gS vkSj fn;k x;k U;k;’kqYd vi;kZIr gS\ The petitioner has given an application for deciding the Issue Nos. 6 and 7 together. This application was rejected on 4.4.2012 so far as it relates to Issue No. 6 which relates to the jurisdiction of the Court whereas with respect to Issue No. 7, the valuation of the suit and payment of Court fees are concerned, the Court below held that sufficient Court fees has been paid. The aggrieved petitioner has field revision that too has been dismissed. 6. While assailing these order, Sri Hasnain has placed reliance upon the division bench judgment of this Court in Mrs. Shahnaz Husain (supra). The aggrieved petitioner has field revision that too has been dismissed. 6. While assailing these order, Sri Hasnain has placed reliance upon the division bench judgment of this Court in Mrs. Shahnaz Husain (supra). Relevant para of the aforesaid judgment is reproduced hereinunder : The above rule no doubt empowers a Court to set aside an order for injunction, but only if it comes to the conclusion that the party in whose favour the order of injunction was passed is delaying the proceedings or is otherwise abusing the process of the Court. The learned Civil Judge had allowed both the amendment applications. It cannot be said the amendments sought were frivolous and intended to delay the proceedings. If some preliminary issues were raised, the Court was bounds to decide it at the earliest before it starts hearing the suit. The pleas regarding jurisdiction which cut at the very root of the suit should be decided as preliminary issues. If such issues are left to be decided at the final trial and after evidence the Court comes to the conclusion that it had no jurisdiction to try the suit and returns the plaint for presentation before another Court, then the Court’s valuable time will obviously be lost. Hence it cannot be said that by asking the Court to decide some preliminary issues the defendants had intended to delay the suit. We do not agree with learned counsel for the respondents that issues 14 and 18 could have been decided alongwith the whole suit. 7. In response thereto, the learned Senior Counsel, apart from the decision on which he has placed reliance, has also invited attention of the Court towards the amended provisions of Order 14 which is reproduced hereinunder : Sub-Rule 2 of Order 14 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 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. Sub-Rule 2 of Order 14 speaks 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 and Sub-Rule 2 (2) of Order 14 speaks 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 the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. 8. The provisions contained in this Sub-rule 2 (2) of Order 14 appears to be directory in nature. From the bare reading of the Rule aforesaid, it transpires that although the statute requires that pure question of law relating to jurisdiction be decided first but where question of law depends upon investigation of fact, the Court may decide the same alongwith other issues after availability of sufficient material before the Court. 9. Hon’ble Supreme Court in Dattatraya Moreshwar v. The State of Bombay and others, AIR 1952 SC 181 , has observed that a law which creates public duty is directory but if it confers private rights, it is mandatory. Relevant passage from this judgment is quoted below : “It is well-settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. Relevant passage from this judgment is quoted below : “It is well-settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.” 10. A Constitution Bench of the Hon’ble Supreme Court, in State of U.P. and others v. Babu Ram Upadhya, AIR 1961 SC 751 , while considering the issue as to whether a provision contained in a Statute is mandatory or directory, observed as under : “For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.” 11. In Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 ; and State of Mysore v. V.K. Kangan, AIR 1975 SC 2190 , whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. 12. 12. In Sharif-Ud-Din v. Abdul Gani Lone, AIR 1980 SC 303 , the Supreme Court, while considering the provisions of Sub-section (3) of Section 89 of the J&K Representation of People Act, 1957, held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance of the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provision has to be construed as mandatory. The Apex Court held as under : “In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory.....Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.” 13. Similar view has been reiterated in Dinkar Anna Patil and another v. State of Maharashtra and others, (1999) 1 SCC 354 ; Shashikant Singh v. Tarkeshwar Singh, AIR 2002 SC 2031 ; Balwant Singh and others v. Anand Kumar Sharma and others, (2003) 3 SCC 433 ; Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and others, AIR 2003 SC 511 ; and Chandrika Prasad Yadav v. State of Bihar and others, AIR 2004 SC 2036 ). 14. In view of the various decisions of the apex Court, it is clear that while holding a particular statute as mandatory or directory, it would be necessary to look into the intention of the Legislature. From a bare reading of the rule it transpires that it is the discretion of the Court either to decide the question of jurisdiction at a first instance or at the time of decision of all other issues. From a bare reading of the rule it transpires that it is the discretion of the Court either to decide the question of jurisdiction at a first instance or at the time of decision of all other issues. The Divisional Bench of this Court in Manager Bettiah Estate (supra), on which Sri Singh has placed reliance, has observed as under : Only 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. It may however be made clear that 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 alongwith other issues whether of law or fact. The whole purpose behind the amended provision is to restrict piecemeal decision and unnecessary multi-tier appeals at intermediate stages on preliminary issue alone and thus avoid procrastination of litigation. The new provision justly aims at abridging the proceeding in the suit rather than permitting prolongation thereof. 15. This view has been subsequently taken by the learned Single Judge of this Court in Mithlesh Kumari (supra). Here in this case, from the perusal of the judgment it transpires that the petitioner has raised question of jurisdiction taking shelter of Section 49 of the Act but the otherside has made allegation of fraud. The bar of jurisdiction in view of Section 49 of the Act may be the question of pure law but the pure law cannot be applied in air unless the facts are investigated particularly where there are allegations of fraud. Here the revisional Court in its judgment has observed in categorical words that since the fraud has been alleged therefore it would be appropriate to decide all the issues together and taking note of that, the revisional Court has refused to interfere with the judgment passed by the Sub-Divisional Officer and rejected the petitioner’s revision. Here the revisional Court in its judgment has observed in categorical words that since the fraud has been alleged therefore it would be appropriate to decide all the issues together and taking note of that, the revisional Court has refused to interfere with the judgment passed by the Sub-Divisional Officer and rejected the petitioner’s revision. Otherwise also, it is settled law that if by reading of statute, two views are possible to be taken and one view has been taken by the Court, that is not amenable for interference under Article 226 of the Constitution of India unless there is jurisdictional error or conclusion has been drawn in ignoring the statute or misreading/non consideration of the relevant materials available on record. 16. The learned counsel for the petitioner, except expressing his anxiety to save the time of the Court, has not placed any material before the Court from which it can be inferred that Sub-Rule 2 of Order 14 of the Code of Civil Procedure mandate that the question of jurisdiction is to be decided first even if investigation of fact is required. In this case both the Courts below have held that the issue No. 6 be decided alongwith other issues and the conclusion is based on sound reasoning i.e. to decide the bar of jurisdiction, investigation of fact is required which can only be arrived at after availability of evidence. The view taken by the Courts below since are based on sound reasoning, therefore the same cannot be faulted with. 17. In view of foregoing discussions, I do not find any ground to interfere with the impugned orders. The writ petition fails and it is hereby dismissed. However, keeping in mind the anxiety of counsel for both the parties and pendency of the matter before the Sub-Divisional Officer for quite long time, it is observed that the Sub-Divisional Officer shall make his all endeavour to decide the suit expeditiously, if possible, within a period of one year from the date of production of certified copy of the order of this Court without granting any unnecessary adjournments to the learned counsel for the parties.