Preliminary issues under CPC are limited to jurisdictional bars; absence of waqf notification does not by itself defeat maintainability.

After the 1976 amendment to Order XIV Rule 2 CPC, only an issue of law relating to jurisdiction or a statutory bar may be tried as a preliminary issue, and not where limitation or related objections depend on evidence of user, worship, graveyard use, or continuing injury. Objections on misjoinder, non-joinder, representative character of the suit, and the effect of the notification were held not to constitute a bar to the suit. A finding that the property was not validly notified under the Waqf law did not extinguish the waqf or defeat maintainability, and did not justify dismissal of the suit. The suit was therefore directed to proceed to final hearing on all issues.

---

---

Issues: (i) Whether issues relating to limitation and other objections could be tried as preliminary issues under Order XIV Rule 2 of the Code of Civil Procedure, 1908; (ii) whether the suit could be dismissed on the basis of the finding that no valid notification had been made under the Waqf law.

Issue (i): Whether issues relating to limitation and other objections could be tried as preliminary issues under Order XIV Rule 2 of the Code of Civil Procedure, 1908

Analysis: After the 1976 amendment, the court is no longer bound to decide every issue of law as a preliminary issue. Only an issue of law relating to jurisdiction or to a statutory bar to the suit can be tried first, and even then the discretion must be exercised reasonably. The objections regarding misjoinder, non-joinder, representative character of the suit, effect of the notification, and the claim to the nature of the property did not amount to a bar to the suit. The limitation objections, though capable of falling within the statutory bar, depended on proof of user, worship, graveyard use, and continuing injury, which would require oral evidence substantially the same as in the suit itself.

Conclusion: The request to try issues 3 and 5(f) as preliminary issues was rejected.

Issue (ii): Whether the suit could be dismissed on the basis of the finding that no valid notification had been made under the Waqf law

Analysis: A finding that the property had not been validly notified under the Waqf law did not mean that the institution or property ceased to be a waqf. The Board had statutory authority to institute proceedings relating to waqf property, and the absence of such notification did not extinguish the maintainability of the suit. The finding also did not affect the rights asserted by the other plaintiffs.

Conclusion: The suit could not be dismissed on that basis, and the application for outright dismissal was rejected.

Final Conclusion: The court declined to carve out preliminary issues and held that the suit must proceed to final hearing on all issues.

Ratio Decidendi: After the 1976 amendment to Order XIV Rule 2, a court may try only those legal issues first that relate to jurisdiction or a statutory bar, and even then not where the issue is mixed with facts requiring evidence; a non-notification under the waqf statute does not by itself destroy the maintainability of a suit concerning waqf property.

---