Babu Ram and another vs Pakiza Begam and others

P.C. Pandit, J.—In a civil suit, out of which the present revision petition has arisen, as many as twelve issues were framed on 5th May, 1971. At the same time, the trial Judge (Mrs. Sudarshan Modi) ordered that issues Nos. 6 and 12 which are given below, be tried as preliminary ones:-

Whether the suit is properly valued for the purpose of court-fee and jurisdiction?

Whether the suit is liable to be stayed u/s 10 Code of Civil Procedure, as alleged in para No.7 of the written statement?

It appears that, later on, the learned Judge was transferred and Mr. P.P. Chhabra, came in her place. By means of the impugned order, dated 21st December, 1971, he directed that evidence be led on all the issues and none of them would be treated as a preliminary one. Against this decision, the present petition has been directed.

The only reason given by the learned Judge for holding that the parties should lead evidence on all the issues was, to quote his own words "the preliminary issues are not of such a nature as can be decided without leading evidence. It is more obviously so when we find that parties have already started leading evidence on these issues". This observation in my view, goes counter to the language employed in Order 14, rule 2, Code of Civil Procedure, which is:

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.

Under this provision, the Court is empowered to try certain issues as preliminary ones. There is nothing in this rule, which debars a party from leading evidence on the said issue, because the same has to be tried as a preliminary one. That being so, it cannot be said that an issue, which cannot be decided without leading evidence, can never be called a preliminary one. Besides, both the above mentioned issues were held to be preliminary and were ordered to be tried as such by the predecessor of the learned Judge and no valid ground has been given by him for changing the previous order. The mere fact that some evidence has to be led for the determination of those issues is, in my opinion no reason in law to direct that they may not be tried as preliminary ones. As a matter of fact, the decision on the two issues might obviate the necessity of a lengthy trial on all the other issues struck in the case.

I would, therefore, accept this petition and quash the impugned order. Since the respondents are not represented before me, there will be no order as to costs.