John Beaumont, Kt., C.J.
1. This is an appeal from the judgment of Mr. Justice Wadia on certain issues which were framed on the footing that they were preliminary issues, The position of the action is this: The plaint was filed on February 10, 1927, and by it the plaintiff alleges that the ' defendant, whoissued by name and described as ' formerly of Indore ', was up to the year 1926 the Ruling Chief of the Indore State, and then it is alleged that prior to 1926 he committed various wrongful acts against the plaintiff, in particular it is alleged that the plaintiff is the owner of a house in Bombay and that the defendant wrongfully took possession of the house and its contents and also ornaments of considerable value belonging to the plaintiff and remained in possession for eleven years; and then it is alleged that the defendant wrongfully imprisoned the plaintiff, and for those various matters damages are claimed.
2. The defendant entered an appearance and took various steps in the action, which I need not go into in detail, On July 18, 1927, the defendant put in a preliminary written statement, in which he claimed that he was not liable to be sued having regard to the fact that at the material dates he was the Ruling Chief of the Indore State. Subsequently he was directed to put in a further written statement, and on October 25, 1928, he put in a supplemental written statement dealing with the allegations of fact contained in the plaint and denying, I think, almost all the material allegations made against him in the plaint. In particular he stated that the house and the contents of the house and the ornaments, which he was alleged to have taken, were in fact not the plaintiff's property at all, but that they were the property of one Tatyasaheb Holkar, who was a cousin of the defendant and whose mistress the plaintiff was, as she alleges in the plaint.
3. The subsequent history of the matter appears from an interlocutory judgment which Mr. Justice Wadia gave on October 6, 1930. From that judgment it appears that on February 25,1929, the then Chamber Judge had directed a preliminary issue in these terms, viz.:-
Whether it being alleged by the plaintiff that the acts complained of by her and in respect of which reliefs are sought were done by the defendant Whilst he was the Ruling Chief of the Indore State, the suit is maintainable against the defendant, and if not, whether the suit should be dismissed ?
4. The learned Judge says in the judgment, to which I am referring, that Mr. Jinnah, who appeared then as counsel for the defendant, had disclaimed any desire to take up a defence under Section 86 of the Civil Procedure Code, and having regard to that disclaimer on the part of Mr. Jinnah, the learned Judge thought that the trial of the preliminary issue previously directed had become unnecessary, and he therefore directed that three fresh issues should be placed on his board for trial. Those issues, which have been tried by the learned Judge, are in these terms :-
1. Whether the acts complained of or all material acts complained of in the plaint were done by the defendant in his capacity as the Ruling Prince of Indore or by the Government of Indore ?
2. Whether in any event the acts or all material acts complained of in the plaint were acts of State ?
3. Whether in the event of the Court holding in the affirmative on issue 1 or 2. this suit should be dismissed with costs ?
5. Now I must confess that I have some difficulty in understanding the first issue. It appears clearly to be an issue of fact rather than an issue of law. At first sight it looks as if the issue was to determine whether the acts complained of or all material acts complained of were done by the Ruling Prince or were done by the Government of Indore. But Mr. Desai for the defendant says that the disjunctive ' or ' between the words 'Ruling Prince of Indore' and 'by the Government of Indore ' in that issue was not intended to point to analternative, but it really meant, 'or in other words', and that the issue intended to be raised was whether the acts complained of in the plaint were done by the defendant as the Ruling Prince, or in other words by the Government of Indore, or whether they were done by the defendant as an individual. Now treating that as being the meaning of the issue, it seams to me that there is this further difficulty, that the issue does not make it clear whether the acts complained of in the plaint are for the purposes of this issue admitted or not. Mr.Desai agrees that they must be treated as admitted if the issue is to be tried as a preliminary issue. Even in that case the preliminary issue is quite as much one of fact as of law. Personally I do not see how you can try an issue of fact based on the supposition, binding as between the parties, that all the allegations in the plaint are true, when that supposition is not binding upon and is not accepted by the witnesses called upon the issue.
6. Under Order XIV of the Civil Procedure Code it is the duty of the Judge at the first hearing of the suit to frame issues based upon the differences between the parties which appear to exist from the pleadings, and under Rule 2 of that Order the Judge may frame a preliminary issue of law. That Rule 2 seems to be intended to introduce the practice which used to be known in England before the passing of the Judicature Act of 1873 as 'demurrer'. That means that the defendant may gay that, assuming the truth of all the allegations in the statement of claim nevertheless the statement of claim in pointof law discloses no cause of action, and therefore the suit should be dismissed. Strictly speaking, under Order XIV, I do not think there is any power in the Court to frame something in the nature of a preliminary issue of fact. No doubt when the Court has framed the issues which properly arise, the Judge may come to the conclusion that one or more of those issues should be tried first and independently, because the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues unnecessary. I understand that a practice exists under which at times issues are framed on a summons taken out for that purpose, and that Judges do sometimes, without framing all the issues which arise, frame particular issues which raise questions of fact, which it is considered can be conveniently tried before other issues, and that was the practice which was adopted in the present case. But I think that is a dangerous practice, because unless the Judge has before him and present to his mind all the issues which arise, he may well fail to realise that the particular issue which he has framed really depends on the answer to other issues; and I think that difficulty is very pointedly illustrated by the first issue in this case. Taking that issue as being whether the acts complained of in the plaint were done by the defendant inhis official capacity as the Ruling Chief or by him as an individual, it seems to me to be plain that you cannot answer that issue without going into thequestion whether 4the acts complained of in the plaint really took place or not. We have looked at the evidence which has been taken on the issues, and the evidence procured from the authorities of the Indore State goes to show that the acts complained of as to which evidence was given, namely, the seizure of the house in Bombay and its contents and the ornaments were done on the footing that the house and its contents and the ornaments belonged toTatyasaheb and not to the plaintiff. So that you get into this difficulty that the evidence of the Indore authorities is based ondifferent premises to those upon which the issue was founded. If you ask the State authorities whether the seizure of the plaintiff's house and her ornaments as alleged in the plaint were acts of the Ruling Prince as such or whether they were the acts of the defendant as an individual, the answer must be, from the point of view of the officials of the State, that the plaintiff's house and ornaments were never seized, but that all that was seized were the house and property of Tatyasaheb. There is some evidence, though not, I think, very convincing, that the seizure of Tatyasaheb's property was the Act of the State, but that does not really answer the issue. One cannot really deal with issue No. 1 apart from the prior issues whether the house and the ornaments belonged to the plaintiff orTatyasaheb, and those issues have not been tried. I think a similar difficulty would arise under issue No. 2.
7. That being so, it seems to me that all we can do is to allow the appeal, and without expressing any opinion on the interesting points of law discussed by the learned Judge in his judgment, I think we should set aside his findings of fact on the ground that on the issues as framed the evidence is really insufficient to enable the issues to be answered; and we refer the matter back to the learned Judge with directions that he should frame issues in the ordinary way raising all points of dispute between the parties, and try the action de novo.
8. With regard to costs, I think the fair order under the special circumstances of the case will be that the costs of the trial of the Issues be reserved to be dealt with by the Judge who hears the case, The plaintiff's costs in the appeal will be costs in the cause; defendant to pay his own costs of the appeal in any event.
9. I agree.