MODY,J. - (1.) [His Lordship after stating the facts of the case, proceeded.] Twenty issues have been raised on behalf of defendants Nos. 4 and 5 and seven on behalf of defendants Nos. 1 and 2. Mr. Desai, the learned Counsel for defendants Nos. 4 and 5, applied that issues Nos. 1 to 7 of his clients be tried as preliminary issues and Mr. Nariman, the learned Counsel for defendants Nos. 1 and 2, applied that issues Nos. 2, 3 and 4 of his clients be tried as preliminary issues. Mr. Jhavery, the learned Counsel for the plaintiffs, opposed that application. Mr. Desai thereupon contended that issues Nos. 1. to 7 of his clients were issues of law and that, in view of the provisions of Order XIV, Rule 2, of the Code of Civil Procedure, this Court was bound to try, i.e., this Court had no other option but to try the said issues as preliminary issues. Mr. Nariman advanced similar contentions as regards issues Nos. 2, 3 and 4 raised on behalf of his clients. Mr. Jhavery, however, contended that under Order XIV, Rule 2, it is not obligatory on the Court to try any issues, even though they be issues of law only, as preliminary issues but that it is merely discretionary for the Court to do so, such discretion being a judicial discretion. On the basis of his contention that the provision of the said rule is discretionary and not mandatory, Mr. Jhavery wanted to further contend that the facts and circumstances in this case are such that the Court should exercise its said discretion against trying any issues as preliminary issues as a piecemeal trial is not desirable in this case. But I did not allow Mr. Jhavery to develop his said further contention as, in my opinion, the provision of the said rule is mandatory and not discretionary.
(2.) ORDER XIV, Rule 2 provides as under: 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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. In my opinion, the language of Order XIV, Rule 2, even by itself, irrespective of any decided cases as to its interpretation, is clear and unambiguous and presents no difficulty as to its interpretation. An issue can be of fact or of law or of mixed facts and law. Now, this rule says that if the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it should try those issues first. As stated in the opening part of this rule, its provisions would apply 'where issues both of law and of fact arise in the same suit'. If in a suit issues are as to facts only, the provisions of this rule do not apply. There is also no other provision in the Code which empowers the Court to try in such a suit some issues of fact as preliminary issues before trying the remaining issues which would be of fact, although there are decided cases, I will point out later, which lay down that even in such a suit the Court has a discretion to try some of such issues of fact as preliminary issues under certain circumstances. If in a suit the issues that arise are all of law only, no occasion would arise for trying any issues of fact and the Code does not provide for trial of any one or more out of such issues of law as preliminary issues. The Code contains a provision for trial of certain issues as preliminary issues only when issues of law as well as of fact arise in a suit and that provision is contained in Order XIV, Rule 2. What that rule provides is that in such a case if 'the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first'. Therefore, before the provision of that rule can apply, the Court must first decide two points. If the Court decides, firstly, that there are any issues in the suit which are purely issues of law, that is not even of mixed law and fact, and secondly, that the case or even any part of the case can be disposed of on such issues of law only, then the provision contained in the said Rule 2 becomes applicable. So far as the second point is concerned, the actual words used are: '' the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only'. The use of the word 'may' here means that the Court has to come to a prima facie conclusion that if the particular issue of law is decided in favour of the party on whose behalf the issue has been raised, it may dispose of the whole case or any part thereof but if it is decided against that party, the same may not dispose of the whole case or any part thereof and the other issue or issues in the ease would have to be tried. Now, the word used in this connection in the rule is 'opinion' which must be interpreted to mean a decision. Whether the issues are or are not of law and whether the case or any part thereof is or is not likely to be disposed of on those issues only are matters for decision by the Court and not, as contended by Mr, Jhavery, matters of the Court's discretion or even judicial discretion. The difference between a decision by a Court and the exercise of a discretion -even a judicial discretion -by the Court is quite clear. A decision is objective and it does not bring in any element personal to the Court, A discretion, on the other hand, is subjective and incorporates within it an element personal to the Court. If that discretion be judicial discretion, it would still be subjective, although the scope or ambit of the element personal to the Court is circumscribed and limited, because such discretion must he exercised on well -recognised judicial principles and is capable of being tested by a Court of Appeal. But within such circumscribed and limited sphere it remains subjective. Once the Court decides that there are any issues in the suit which are purely of law and further that the case or any part of the case can be disposed of on such issues of law only, the provision of Rule 2 comes into operation and it says: 'it shall try such issues first'. The word used is 'shall' which makes that provision mandatory. It leaves no option or discretion to the Court. The Court has no alternative but to try such issues as preliminary issues.
(3.) I will now turn to the decided cases as regards the interpretation of the said Rule 2 which were cited before me.;