The court has the discretion to decide on the order in which issues are tried, but issues of law going to the root of the case and capable of being decided without evidence must be tried first.

P. K. MOHANTI, J.

( 1 ) THIS revisional application is directed against an order of the learned subordinate Judge of Parlakhe-mundi rejecting the defendant's prayer for hearing of the issue relating to res judicata as a preliminary issue.

( 2 ) IT is urged on behalf of the defendant-petitioner that the order of the learned subordinate Judge is not in accordance with the provisions of Order 14, Rule 2, civil Procedure Code which authorises the court to take up a question of law for preliminary decision if it is of opinion that the case or any part thereof may be disposed of on the issues of law only.

( 3 ) THE trial of a case piecemeal is a serious evil to the parties. It leads to protracted litigation and repeated appeals. It is now well settled notwithstanding the provisions of Order 14, Rule 2 that in appealable cases the trial court should hear all the issues together So as to avoid a remand where the appellate court differs from the trial court on the preliminary issue. But when issues of law going to the root of the jurisdiction of the court arise, the court must try those issues first. In AIR 1971 Pat 313 (Mahabir v. Babu Lal), it was held as follows:-

". . . . . . . . . . A court, is not under any obligation as to order in which it is to try the issues raised before it. It has the right to dispose of the issues in any way which it considers most likely to be conducive to the ascertainment of the truth. There are, however, two reservations. The first is that in appealable cases, the court should as far as possible decide on all the issues together, inasmuch as a piece-meal trial might lead to a protracted litigation and repeated appeals in the same suit. The second is which is contained in Rule 2 of Order 14, that where issues of law going to the root of the case, and capable of being decided without evidence arise, the Court is bound to try these issues first, and may in its discretion postpone the settlement of issues of facts until after the issues of law have been determined. " in AIR 1969 Orissa 295 (Ram Saraf v. Mani Dei), G. K. Misra, J. (as he then was) held as follows:-"it is well known that the suit must be tried as a whole and not piecemeal unless it involves the question of jurisdiction. For instance, if the valuation of the suit be such that it will oust the jurisdiction of the court before whom it was instituted, then in such cases ordinarily this issue should be tried as a preliminary issue to prevent unnecessry harassment to the litigants. But in all other matters it is always desirable that the case should be tried as a whole, so that it would not be remanded times without number from the appellate court to re-examine other matters left undecided. "

( 4 ) IN view of the authorities cited above, the learned Subordinate Judge took the correct view in refusing to try the issue regarding res judicata as a preliminary issue.

( 5 ) THE Civil Revision is dismissed, but in the circumstances without any order as to costs. The learned Subordinate Judge is directed to dispose of the suit containing all the issues by the end of November, 1976.