The provisions of Rule 2 of Order 14 of the Code of Civil Procedure are mandatory and that the only discretion left to the Court is to form and express an opinion as to whether the case can be disposed of on the issues of law.

A.N.Bhandari, J.

1. This petition under Article 227 of the Constitution raises the question whether an Election Tribunal is justified in declining to determine certain preliminary questions of law under the provisions of Order 14 Rule 2 of the Code of Civil Procedure which if decided in favour of the party objecting would dispense with any further trial or at any rate with the trial of some substantial issue in the case.

2. Partap Singh Kairon, Chief Minister of the Punjab, was elected a member of the Punjab Legislative Assembly from the Sarhali Constituency of the Amritsar District defeating his rival candidate S. Gurmej Singh by a majority of over 20,000 votes.

3. On 11-4-1957 S. Gurmej Singh presented an election petition in which he challenged the election of S. Partap Singh on a number of grounds, among others, being (1) that the nomination paper filed by one Santa Singh was improperly rejected by the Returning Officer, and (2) that S. Partap Singh had obtained the assistance of lambardars for the furtherance of the prospects of his election.

4. S. Partap Singh controverted those allegations and prayed that the election petition be rejected as the nomination paper of Santa Singh was not improperly rejected and as the office of lambardar is not covered by the provisions of Section 123(7) of the Representation of the People Act, 1951.

5. In view of the pleadings of the parties the Election Tribunal framed a number of issues, including issues Nos. 3 and 8 which were in the following terms:

"3. Is it competent for the petitioner to raise any objection at this stage that the nomination paper filed by Santa Singh should not have been rejected by the Returning Officer? Was the same improperly rejected?

8. Is a lambardar a person in the service of Government under Section 123(7) of the Representation of the People Act, 1951?"

6. S. Partap Singh stated that these two points should be disposed of as preliminary points in accordance with the provisions of Rule 2 of Order 14 of the Code of Civil Procedure as they would substantially dispose of the whole action. The Election Tribunal declined to accede to this request.

7. S. Partap Singh has now presented a petition under Article 227 of the Constitution of India and Section 151 of the Code of Civil Procedure in which he prays that the election petition filed by S. Gurmej Singh may be dismissed without its trial on facts and merits and that the order of the Election Tribunal declining to decide the preliminary questions of law be quashed. This petition has come up for hearing before us and has been argued with conspicuous ability by Mr. C. K. Daphtary on behalf of the petitioner and Mr. Anand Sarup on behalf of the respondent.

8. Three questions arise for decision in the present case, namely (1) Are the provisions of Rule 2 of Order 14 of the Code of Civil Procedure mandatory? (2) Can the case or any part thereof be disposed of on issues Nos. 3 and 8? and (3) If the answers to the first two questions are in the affirmative have any grounds been made out which would justify interference by this Court under Article 227 of the Constitution?

9. Rule 2 of Order 14 of the Code of Civil Procedure is in the following terms:

"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 the issues of law only, it shall try these 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".

10. Mr. Anand Sarup, who appears for S. Gurmej Singh, admits that where a point of law which if decided in one way is going to be decisive of litigation, the Court is at liberty to take advantage of the facilities afforded by this rule, but he contends that the rule places no obligation on the Court to do so and leaves it to the presiding officer to decide for himself whether circumstances exist in each particular case call