JUDGMENT

1. This is an application under Section 115, Civil P.C., arising out of the refusal by the Munsif of Bahraich to dispose of preliminary issues, directed to the question whether he had jurisdiction to entertain the suit, before other issues were tried. It appears that the question was raised in the pleadings, but no issue was framed upon it. There is a note by the Court that the parties "do not press any plea not covered by the issues already framed." It was only when the case was proceeding, and after the evidence for the plaintiff had been recorded, that the question was again raised. A request was then made that the question of jurisdiction might be decided as a preliminary issue before further proceedings were taken. The Munsif rejected the application, observing that he did not think it proper to decide the additional issues which he had added relating to this question, because the stage of preliminary points had passed, the plaintiff having already adduced his entire evidence. He therefore decided to take the additional issues with those previously framed and decide them together. A preliminary objection has been advanced that no application lies under Section 115 against the order of the Munsif because no case has been decided within the meaning of that section. Reference was made for the applicant to the provisions of Order 14, Rule 2, Civil P.C., which reads:

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.

2. There have been numerous decisions bearing on the question of the discretion of the Court in cases covered by this rule. We were referred in particular to cases of the Allahabad and Calcutta High Courts, namely Udmi Ram Ram Sarup v. Ghasi Ram Shakan Lal, AIR1933All753 and Debendra Narain v. Jogendra Narain, AIR1933Cal559 A single Judge of the Allahabad High Court in the first, case held that where there are issues of law and fact it is obligatory for the Court to consider whether the case can be disposed of on the legal issue alone. He also held that an order rejecting an application to consider the issue of jurisdiction first, without expressing any opinion as to whether the case could be disposed of on that issue, is a case decided within the meaning of Section 115. In the Calcutta case it was said that the rule refers to the stage when issues are framed and consequently it does not apply to cases where an application is made after the date fixed for first hearing for the trial of some of the issues raised in a suit as issues of law without taking evidence. In such circumstances the question must be dealt with irrespective of the provisions of the Code of Civil Procedure. It was also said that though the trial of a suit piecemeal has been condemned on the ground of inconvenience and costs involved in such procedure, it is impossible to lay down a general rule in this behalf.

3. With all respect to the learned Judge who decided the Allahabad case, we feel serious doubt whether an application does lie under Section 115. We find it difficult to hold that any case has been decided. The only decision is that the question of jurisdiction will be considered with the other issues. Its consideration has merely been postponed. Nothing has been decided which affects the rights of the parties. We have been referred to our own decision in Prithvi Nath v. Lala Bhagirath Tondon, A.I.R. 1942 Oud 208 We think that some observations made by us in this case may have been misunderstood. One of the headnotes Not A.I.R. to the case reads:

The decision of a part of a case does not amount to "a case decided" within Section 115. Where, however, an irreparable damage would be done to the party who comes in revision if the order were allowe