IMPORTANT POINTS
(1) CPC confers no jurisdiction upon Court to try a suit on mixed issues of law and fact as a preliminary issue and where decision on issue depends upon question of fact, it cannot be tried as a preliminary issue.
(2) All rules of procedure are handmaid of justice – Language employed by draftsman of processual law may be liberal or stringent but object of prescribing procedure is to advance cause of justice.

JUDGMENT

Hemant Gupta, J.

The challenge in the present appeal is to an order dated 3.9.2021 whereby in the revision petition filed by the defendant under Article 227 of the Constitution of India, the trial court was directed to frame preliminary issue as to whether the suit is barred by res judicata.

2. The plaintiffs-appellants filed O.S. No. 95 of 2016 against the respondent, their paternal aunt. The appellants claimed a declaration for declaring the appellants as absolute owners of the suit property, judgment and decree in O.S. No. 65 of 2003 as null and void, and, for permanent injunction restraining the defendant and their agents in disturbing the peaceful possession and enjoyment of the suit property by the appellants in any manner. Initially, the defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908[For short, the 'Code'] for rejection of the plaint but the same was dismissed by the trial court on 20.6.2017. It is thereafter, the defendant filed an application to frame issues under Order XIV Rule 2(2) of the Code to treat the following as the preliminary issues:

"1. Whether the suit is not hit by resjudicata and estoppel as claimed by the defendant in the written statement in Para- I 0 & 11.

2. Whether the suit is not hit by resjudicata and estoppel as claimed by the defendant in the written statement in Para-12.

3. Whether the suit is not barred by limitation as contented by the defendant in the written statement in Para-13.

4. Whether the Plaintiffs have deliberately and wantonly abused the process of the court, as contented by the defendant in the written statement in Para-15 and 16.

5. Whether the suit is not valued properly and court fee paid is deficient as claimed by the defendant in Para 18 of the Written statement."

3. The learned trial court dismissed the application of the defendant on 3.10.2019. Such order of the learned trial court was challenged in revision petition under Article 227 of the Constitution of India wherein the High Court ordered the framing of issue of res judicata as preliminary issue.

4. Learned counsel for the appellants relied upon provisions of Order XIV Rule 2 of the Code to contend such Order XIV Rule 2 has been substituted by Central Act No. 104 of 1976, whereby the Court is mandated to pronounce judgment on all issues, even though the suit can be disposed of on a preliminary issue. It was argued that such amendment was necessitated to avoid delay in the disposal of the proceedings inasmuch as if only a preliminary issue is decided, the further appeal and revision would be preferred only against the preliminary issue and after the preliminary issue is decided in favour of the plaintiffs, the evidence has to be led on the remaining issues. Therefore, to ensure expeditious disposal of the proceedings and to avoid possibility of remand by the appellate or revisional jurisdiction, it was made mandatory for the Court to record reasons on all the issues. Such finding would obliviate the possibility of remand at appellate or revisional stage, even if the finding on preliminary or other issues are to be reversed.

5. Order XIV Rule 2 before amendment by the Act No. 104 of 1976 reads thus:

"R. 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 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."

6. The said provision came up for consideration before this Court in a judgment reported as Major S. S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497. It was held that under Order XIV Rule 2 of the Code 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 postpone the settlement of th