Dave, J. - (1.) THIS is an application in revision by the defendant against an order of the Civil Judge, Sawai Jaipur, dated the 19th April, 1949.
(2.) IN a money suit filed by the opposite party against the applicant, one of the pleas raised by him amongst others was that the plaintiff could not ask for a money decree without filing a suit for accounts. One of the issues namely, the fourth, framed by the trial court, therefore, was "whether the suit for the money decree was not maintainable. " On the 19th of April, 1949 the applicant's advocate in the trial court filed a petition praying that this issue of law should be decided first before proceeding with the evidence on other issues. This application was rejected saying that it was unnecessary to decide this issue before others. The applicant's advocate contends that according to Order 14, Rule 2 of the Civil Procedure Code it was mandatory for the trial court to decide a pure issue of law before going on the issues of facts and that in rejecting his application it has committed a material irregularity and, therefore, it should be directed to decide this issue at this stage. The advocate for the opposite party has raised a preliminary objection that there was no case decided by the trial court and, therefore a revision application does not lie to this court. In support of their contentions the advocates for the applicant and the opposite party rely on A. I. R. 1933 Alld. 753 and A. 1. R. 1944 P. C. 156 respectively. I think the observations made by their Lordships of the Privy Council in the case reported in A. I. R. 1949 P. G. 156 do not help the advocate for the opposite party. It was a case in which the learned Judges of the High Court of Madras did not agree with the construction of a will made by the District Judge of Ramnad. In the opinion of the learned Judges of that High Court the conclusion of the District Judge was so out of accord with the meaning of the document that it required interference and they thought that they were justified in doing so under Sub-section (c) of sec. 115 C. P. C. Relying on 11 Calcutta 6 (P. G.) and A. l. R. 1917 P. C. 71, it was observed by their Lordships of the Privy Council that sec. 115 C. P. C. applies only to cases in which no appeal lies, and, where the legislature has provided no right of appeal, the manifest intention is that the order of the trial court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate court upon questions of fact or law. " It is quite clear from the above observations that the interference by the learned Judge of the Madras High Court was considered improper, because the District Judge had not acted illegally or with material irregularity in exercising the jurisdiction and the learned Judges of the High Court had allowed the revision petition only because in their opinion the subordinate court had made a gross error in arriving at its conclusions. Their Lordships have given a clear indication as to what is meant by illegality or material irregularity in sub-sec. (c) of sec. 115 C. P. C. Illegality is illustrated as "a breach of some provision of law" and material irregularity "as committing some error of procedure in the course of the trial which is material". In other words, this subsection would apply if the court, whose order is sought to be revised, has got proper jurisdiction but in exercising that jurisdiction it contravenes some provision of law or it commits some grave error of procedure affect-ing one of the parties to the case. If the procedure laid down by law gives a certain right to any party and if that right is denied to that party by the court by deviating from the prescribed procedure it is to my mind a case decided by that court and would warrant an interference in revision by the High Court. The words "case decided" have been a subject of great controversy among the different High Courts for a long time. The narrowest view was taken in A. I. R. 1921 Allahabad 1. The same view was once followed by a Full Bench of the Lahore High Court in A. I. R. 1924 Lah. 425, but that view was dissented by a larger Bench of the same High Court in A. I. R. 1943, Lah. , 65. In similar case reported in A. I. R. 1933 Alld. 753 the learned Judge of the Allahabad High Court has taken a view broader than the one expressed in A. I. R. 1921 Alld. 1. Now Order 14 Rule 2 C. P. C. runs 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. " The use of the word "shall" in the above Rule shows that it is obligatory for the court to try the issues of law first if it is of opinion that the case or any part thereof may be disposed of on those issues only. It is, therefore, necessary for the trial court to determine whether a case or part thereof can be disposed of only on the issue of law and unless it thinks that it cannot be so disposed of, it should not refuse to adopt this procedure simply to avoid piecemeal decision. This view finds support in A. I. R. 1936 Pat. 250. This Rule has been provided by law in order that the party at whose instance the issue of law is framed may not be put to unnecessary harassment and be compelled to produce evidence and wait till the completion of the whole trial, only to find later on that it was all unnecessary. When the defendant presented his application to the trial court, it should have, therefore, applied its mind and decided whether this issue No. 4 could be decided first without any evidence being produced by the parties. , Unfortunately, it has not given any decision as to why this issue could not be taken up at this stage. The advocate for the plaintiff concedes that since the issue relates only to maintainability of the suit and the parties have been examined before the framing of the issues, it can be decided without any evidence from both the parties. The revision application, is therefore, allowed and the trial court's order dated the 19th April 1949 is set aside. The file be sent back with directions that issue No. 4 should be tried before other issues. Costs would abide the result. . ;