IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 192 of 2007. Decided on : 2nd January, 2008. Puran Chand. …Petitioner. Versus Pat Ram. …Respondent. Coram The Hon’ble Mr. Justice V.K. Gupta, C.J. Whether approved for reporting?1 Yes. For the Petitioner: Mr. Bhupender Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate. For the Respondent: Mr. G.D. Verma, Senior Advocate, with Mr. Romesh Verma and Mr. B.C. Verma, Advocates. V.K. Gupta, C.J. (Oral). By passing the impugned order on 27th December, 2006 whereby application purportedly filed by the respondent under Order 14 Rule 2, sub Rule (2) of the Code of Civil Procedure for treating two Issues as preliminary Issues was allowed and the learned trial Court by the aforesaid order in fact directing to treat these two Issues as preliminary Issues, a patent error of law, apparent on the face of the record, came to be committed. Compounding this error, the learned trial Court by passing the second impugned order dated 4th July, 2007 once again indeed fell into a graver error by rejecting the petitioner’s application for recalling the order dated 27th December, 2006 because this time it failed to appreciate the ratio laid down in a Full Bench Whether reporters of the local papers may be allowed to see the judgment? judgment of this Court in the case of Prithvi Raj Jhingta and another vs. Gopal Singh and another, reported in Latest HLJ 2006 (HP)(FB) 1179. In the pending suit as many as 14 Issues were framed by the learned trial Court vide an order dated 16th May, 2006. Out of these 14 Issues, Issues No.11 and 12 were the subject matter of an application filed by the defendant under Order 14 Rule 2, sub-Rule (2). Vide this application, the defendant had prayed to the learned trial Court to treat these two Issues as preliminary Issues and decide them first in view of the submissions made in the said application. The relevant extracts of the Court order dated 16th May, 2006 framing 14 Issues including Issues No.11 and 12 as well as the operative portion of that order are reproduced hereinbelow for ready reference:- “16.5.2006. Present: Sh. Vipin Pandit, Adv. vice for plaintiff. Sh. R.K. Verma, Adv. vice for defendant. Proposed issues filed on (sic). Heard. From the pleadings of the parties, the following issues are framed: ………………………………………………… 11. Whether the suit is barred by resjudicata under Section 11 CPC, since the matter in controversy has already been decided in previous litigation between the same parties? OPD. 12. Whether the suit is hit under Order 2 Rule 2 CPC and not maintainable as alleged? OPD. …………………………………………………. Issues are read over and explained to the parties, no other issue raise or claim by any party. At this stage one application under order 14 Rule 2(2) read with Section 151 CPC filed on. Now to come up for reply and consideration on 31.7.2006. Sd/- (Rajeev Sood) Civil Judge (Senior Division), Kasauli.” The order itself reveals that it was after the issues had been framed that an application under Order 14 Rule 2, sub-Rule (2) came to be filed by the defendant which the Court had postponed for consideration to 31st July, 2006. Even though the application was postponed to 31st July, 2006, actually it was only on 27th December, 2006 that the order came to be passed upon this application whereby, as noticed at the outset, the learned trial Court being of the opinion that the aforesaid two issues should be treated as legal Issues allowed the application and directed that these be treated as legal Issues. The relevant extract of the said order indicating the Court’s opinion as well as its finding is reproduced hereinbelow. It reads thus:- “……………………….Accordingly, I see no hitch in allowing the present application when the said issues are of legal nature and only formal type of evidence is to be led. Accordingly, the application is hereby, allowed and the Issues No.11 and 12 framed vide order dated 16.5.2006 are hereby, ordered to be treated as preliminary issues.” Even though the aforesaid Full Bench judgment in the case of Prithvi Raj Jhingta (supra) was rendered on 7th September, 2006, apparently for reasons of lack of knowledge or otherwise this was not brought to the notice of the learned trial Court at the time the order dated 27th December, 2006 was passed by it. It was in this background that application for recall was filed later on in which the aforesaid Full Bench judgment was referred to and relied upon and based upon the ratio of the said judgment, the learned trial Court was requested to recall the order dated 27th December, 2006. In passing the order dated 4th July, 2007, the learned trial Court by totally misdirecting itself and in total derogation of the ratio laid down in the Full Bench judgment, by grossly misappreciating it as well, rejected the application for recall and persisted with its earlier order of treating the two Issues as preliminary Issues. The grave error which has been committed by the learned trial Court based on non-appreciation of the Full Bench judgment is that once it framed all the Issues, of facts as well as law by its order dated 16th May, 2006, by exercising its jurisdiction under Order 14 Rule 2(1), it had to try all the Issues together and pronounce judgment on all the Issues which also is the clear mandate of sub Rule (1) of Rule 2 of Order 14 CPC. Jurisdiction to try issues of law only can be exercised only in terms of sub-Rule (2) of Rule 2 of Order 14 and that can be done only at the stage of the framing of Issues immediately after the filing of the pleadings by the parties. Full Bench judgment has clearly held that where the Court is of the opinion that the case or any part thereof can be disposed of on a issue of law only, it may frame Issues of law only and try them if those Issues relate to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Actually sub-Rule (2) goes as far as to lay down that if the Issues of law are framed while exercising jurisdiction under this sub-Rule, the Court has to postpone the settlement of other Issues until after Issues of law have been determined. Since in the present case the Court had not exercised jurisdiction under sub-Rule (2) and had chosen to exercise jurisdiction under sub-Rule (1), whether upon an application filed by the defendant or otherwise the Court had no jurisdiction at all to order that Issues No.11 and 12 should be treated as preliminary Issues even if, in the opinion of the Court the suit could be disposed of on these two Issues. That stage was over. It was wholly impermissible. Another glaring mistake which the Court has committed is by observing that Issues No.11 and 12 actually were Issues of law only. In the order dated 27th December, 2006, the Court itself has observed that “only formal type of evidence is to be led”. Whether evidence is of formal type or any other type, once there is a question of leading evidence in support of, or against any Issue or Issues, the Issue or Issues cease to be pure Issues of law and go totally outside the ambit, purview and scope of sub-Rule (2) of Rule 2 of Order 14 CPC. In the present case to support Issues No.11 and 12, the defendant had sought reliance upon some earlier judgments rendered in an earlier suit. Once reliance is sought upon such a material, which has to be introduced in the suit and got proved by permissible means, that becomes evidence because such material introduced has to be appreciated as a fact by the Court and accordingly applied to the facts of the suit. This in common parlance is called evidence. Once, therefore, evidence is required to prove or disprove, support or oppose an Issue it cannot be termed as a pure Issue of law. It is an Issue of fact, may be a mixed Issue of fact and law. An Issue of law is only that Issue where, merely by looking to the pleadings of the parties, the Court decides that Issue in accordance with the applicable law. Looking to the pleadings of the parties and applying law on the subject does not amount to appreciating any evidence. This is the second error in which the learned trial Court fell. Both the impugned orders dated 27th December, 2006 and 4th July, 2007 accordingly are set aside. It is directed that the learned trial Court shall try and dispose of all the 14 Issues together and based upon its findings with respect thereof pronounce judgment in the case. The petition is allowed and disposed of. No order as to costs. CMP No.678 of 2007. In view of the disposal of the main petition, this application is disposed of. Interim order dated 29th August, 2007 shall stand vacated. 2nd January, 2008. (V.K. Gupta), C.J. (tr)