Dr. R. R. Misra, J. - (1.) -
(2.) PLAINTIFF-opposite party had filed Suit No. 263 of 1986 in the court of Civil Judge, Saharanpur claiming a decree for damages against the defendants, including the present applicant in revision in this court, who is the District Supply Officer. The ground for relief in the plaint was that the defendants had acted maliciously and collusively and had misused their office as public servants. The defendants filed a written-statement. Consequently five issues were framed by the trial court. The present applicant in revision moved an application before the trial court for trial of issues nos. 2 to 5 as preliminary issues. By the impugned order the trial court has rejected the said application of the defendant-applicant on the ground that having regard to the pleadings of the parties it will be expedient and proper to try all the issues together as trial of the said issues involve questions of law as well as fact. Thus on the aforesaid finding the trial court has refused to exercise discretion vested in it in regard to the trial of the said issues as preliminary issues. I have heard learned counsel for the parties. It has been submitted on behalf of the applicant that in view of the provisions of Order XIV Rule 2 sub-rule (2) of the Code of Civil Procedure it was incumbent on the trial court to have proceeded to decide the said issues as preliminary issues and allowed the application of the applicant. To appreciate the said contention it will be necessary to take into account the provisions of Order XIV Rule 2 as they stood before the amendment by CPC (Amendment) Act, 1976 with effect from 1-2-1977 and thereafter. Order XIV Rule 2 of the Code of Civil Procedure as it stood before the said amendment was as follows : "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."
(3.) AFTER the aforesaid amendment in the year 1976 Order XIV Rule 2 as amended is as follows : "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." From a reading of the above provisions, it is clear that the issue as to jurisdiction may be an issue of law or of fact or a mixed issue. Prior to the amendment of the said provisions in the year 1976, the legislature directed the Court to frame issues of law arising in a case and it was incumbent upon the Court to try those issues first for the disposal of the case or any part thereof. In the latter part of the aforesaid unamended provisions it was also provided that pending the disposal of the said issue of law even the settlement of issues of fact have to be postponed until after the issues of law have been determined. On this state of law, the legislature intervened and by the said amendment made in the year 1976 the position was changed entirely. Under the amended provision under sub-rule (1) of Rule 2 it is obligatory on the court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. The only exception provided by the legislature is that a case where issues both of law and 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 which relates to the jurisdiction of the Court or creates a bar to the suit in law, that issue may be treated first. Thus the legislative mandate is that the issue of jurisdiction depending upon question of fact and/or mixed questions of law and fact must be decided on merits at one and the same time along with other issues. Direction to try preliminary issue of law in the two situations mentioned above is to 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. From a perusal of the case law on the point, I find that the provisions of Order XIV Rule 2 of the Code of Civil Procedure as they stood before 1976 were interpreted by the Supreme Court of India in the leading case of Major S. S. Khanna v. Brig. E. J. Dillon, AIR 1964 SC 497 as under. At page 503, it was observed by the court as follows :- "The jurisdiction to try issues of law, apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and facts as preliminary issues. Normally all the issues in a suit should be tried by the court : not to do so, especially when the decision on the issues even of law depends upon the decision of the issues of fact, would result in a lop-sided trial of the suit.";