The discretion to frame a preliminary issue under Order 14 Rule 2(2) of the Code of Civil Procedure must be exercised by the trial court at the time of settlement of issues, and not after a lapse of several years.

( 1 ) THE petitioner-herein had filed a suit for possession of a portion of a Dallan in premises bearing Municipal No. 857 Katra Hidu Farash Khana, Delhi. In the suit the petitioner had valued the same, for the purpose of court fee and jurisdiction, at Rs. 500. 00. Written statement was filed by the respondents in which one of the pleas which was raised was that the value of the property was more than Rs. 25,000. 00.

( 2 ) THE said suit was filed in the year 1978. In 1979 two issues were framed. One of the issues which was framed was "whether the suit has not been valued properly for the purpose or court fee and jurisdiction ? OPD". The other issue which was framed was "whether the defendants have taken illegal possession of the suit premises ? OPP". The third issue was of Relief.

( 3 ) THOUGH the issues were framed in the year 1979, no evidence has so far been recorded in the suit. I am told that a number of dates were fixed for evidence of the parties but for different reasons the case was always adjourned. On 20th December, 1985 the respondents/ defendants moved an application under Order 14 Rule 2 praying that the first issue be treated as a preliminary issue. The trial court, vide the impugned order dated 22nd March, 1986, came to the conclusion that the said issue pertains to the jurisdiction of the court to try the suit and, therefore, it should be treated as a preliminary issue. The application filed by the respondents was accordingly allowed. It is this order which is challenged before me.

( 4 ) ON behalf of the petitioner, while placing reliance on the decision in the case of Hardwari Lal v. Pokhar Mal and others, AIR 1978 Pandh 230, it has been contended that where evidence has to be recorded then preliminary issue cannot be framed. According to the learned counsel, with the amendment of Order 14 Rule 2 with effect from 1st February, 1977, the court is bound to decide all the issues together and it is only on an issue of law pertaining to jurisdiction of the court that a preliminary issue can be decided first, provided the issue of law does not involve investigation into the facts.

( 5 ) ORDER 14 Rule 2, after its amendment with effect from 1st February, 19/7, reads as follows : "2. (l) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of subrule (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. " Rule 2 (1) now provides that the court shall pronounce judgment on all the issues. This provision is mandatory, but is subject to the provisions of subrule (2 ). Sub-rule (2) gives a discretion to the court to frame a preliminary issue of law only if it relates to the jurisdiction of the court or to a bar to the institution of the suit itself. Therefore, in order to treat an issue as a preliminary issue, two conditions have to be satisfied. Firstly, it has to be an issue of law and, secondly it must pertain to the jurisdiction of the court to try the suit or pertain to the institution of the suit itself by reason of a bar created by any law.

( 6 ) I am unable to agree with the contention of the learned counsel for the petitioner that the issue of law pertaining to jurisdiction or to the maintainability of the suit must be such in which no evidence at all is to be recorded. The expression "issue of law" occurring in sub-rule (2) of Order 14 Rule 2 is in contra-distinction to the expression "issue of fact". Whether the court has the