IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO Nos. 235 & 236 of 2007 Date of Decision: April 11, 2008. ________________________________________________________________ 1. CMPMO NO. 235 of 2007 Sadhu Singh & ors. ….. Petitioners Versus Surjit Singh … Respondent. 2. CMPMO NO. 236 of 2007 Sadhu Singh & ors … Petitioners. Versus. Sohan Singh … Respondent. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? yes For the Petitioner(s) : Ms. Jyotsna Rewal Dua, Advocate. For the Respondent(s) : Mr. Bimal Gupta, Advocate. ________________________________________________________________ Deepak Gupta, J (Oral). These two petitioners are being disposed of by a common order since identical questions of law are involved in these cases. Briefly stated the facts of the case are that the petitioners, hereinafter referred to as the plaintiffs, filed two suits, against the respondents, hereinafter referred to as the defendants, on a similar cause of action. After the defendants filed written - 2 - statement, issues in both the suits were framed on 27.6.2005. After the issues were framed, one of the cases was adjourned for recording of the plaintiffs’ evidence on 13.9.2005 and the other case was fixed for PWs on 9.9.2005. It appears that the witnesses of the plaintiffs were not present and thereafter the defendants filed applications in both the cases that some of the issues be treated as preliminary issues. Both the applications were disposed of by a similar order and the learned trial Court held that issues 2 to 5 should be treated as preliminary issues. These orders are under challenge before this Court in the present petitions. The question which arises for adjudication is whether, after framing issues and fixing the matter for evidence, the Court has any jurisdiction to direct that an issue be treated as a preliminary issue. To understand the question raised in these petitions, it would be appropriate to refer to Order 14 rule 2 CPC which reads as follows:- “2. 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 - 3 - 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.” The aforesaid provision was interpreted by the Full Bench of this Court in Prithvi Raj Jhingta and another v. Gopal Singh and another, Latest HLJ 2005 (HP) (FB) 1179, wherein the Court held as follows:- “Based upon the aforesaid reason therefore, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such as well as on its plain reading, we have no doubt in our minds that except in situations perceived or warranted under sub- rule (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, both of the law as well as facts and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This court of action is not available to a Court because sub-rule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues or what can be termed as issues of law. Sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have - 4 - been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit.” This judgment was cited before the learned trial Court. The learned trial Court has distinguished the judgment of the Full Bench only on the ground that in the case decided by the Full Bench of this Court, the issues of law and fact had not only been framed but had also been tried together, whereas in the present cases, though all the issues have been framed, the parties had not led any evidence. The trial Court has totally misunderstood the judgment. The learned trial Court gravely erred in coming to the conclusion that the Full Bench has given its judgment on the facts of the case. The Full Bench had interpreted the provisions of the Code of Civil Procedure and this was an interpretation of the legal provisions and not a judgment on facts. A similar question came up for decision in CMPMO No. 192 of 2007, titled Puran Chand versus. Pat Ram, decided by the then Hon’ble Chief Justice of this Court on 2.1.2008, wherein the following pertinent observations were made :- “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 - 5 - 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.” I am in respectful agreement with the aforesaid views. Order 14 rule 2 CPC does not empower the court to direct trial of the preliminary issues at a later stage. In fact, as observed, by the learned Chief Justice, where both issues of law and fact arise and the Court is of the opinion that the case can be disposed of on the legal issue(s) only, it should normally frame the legal issue and should postpone the framing of the other - 6 - issues. I am of the opinion that even if the Court frames issues both of law as well as of fact, the court must on the same date itself clearly decide whether the legal issues are to be treated as preliminary issues or not. This must be done on the date when the issues are framed. Once issues are framed and the case is set down for recording of evidence, the Court has no power to hold that some issues should be tried as preliminary issues. It is then duty bound to try and decide all the issues together. In view of the above discussion, the order of the learned trial Court is totally illegal. The same is accordingly set aside and the trial Court is directed to try and decide all the issues together in terms of Order 14 rule 2 CPC. The petitions are disposed of in the aforesaid terms. No costs. April 11, 2008. ( Deepak Gupta ),J. s.