R.C. Patnaik, J.
1. This revision is directed against an order passed by the Munsif, Bhadrak, rejecting the prayer of the petitioner to decide the question of res judicata as a preliminary issue under Order 14, Rule 2 of the Civil P. C.
2. Brief facts leading to the application are:
Opposite Party No. 1 filed a suit for partition on the basis of his purchase under sale deed dated 16-1-70 from defendant No. 2. Defendant No. 4 mainly contested the suit claiming to have purchased the entire two decimals under sale deed dated 15-4-68, According to the said defendant, Gura (defendant No. 2) was not the daughter of Hadi Das and Jema as alleged by the plaintiff and sister of Makari, his vendor, His specific case was that Gura was the daughter of one Rama Das and had no connection with the family of Hadi Das. So, the purchase of the plaintiff was from an imposter. It was further alleged that in a previous suit filed by one Minki which was being contested by Gura, an issue was raised as to whether Gura wag the daughter of Hadi Das or Earn Das and it was decided by this Court that Gura was not the daughter of Hadi Das. He averred that the said finding in the earlier suit operated as res judicata and in view of the said finding, by the purchase the plaintiff did not acquire any title.
3. Having regard to the pleadings, an issue was struck as follows:
'Is the suit barred by the law of res judicata?'
When the case was taken up for hearing, defendant No. 4 filed an application under Order 14, Rule 2, C.P.C. for deciding the question of res judicata as a preliminary issue before trial of other issues. The plaintiff and defendant No. 2 filed objections stating that neither he nor defendant No. 2 being parties to Original Suit No. 46 of 1970 culminating in Second Appeal No. 149 of 1976, they were not bound by any finding and moreover, they pleaded that title in the property was claimed by Gura not as the daughter of Hadi; but as daughter of Jema, and niece of Malli, who were the recorded owners. According to them, it did not matter if it was found that Gura was not the daughter of Hadi Das. They, however, contended that the issue did neither relate to jurisdiction of the court nor to a bar to the suit created by any law for the time being in force. They further urged that the decision of the issue would not finally dispose of the suit and it would be necessary to decide the other issues.
The learned Munsif rejected the prayer of defendant No, 4. Hence this revi-sion,
4. The provision contained in Order 14, Rule 2 of the Civil P. C. was amended by Central Act 104 of 1976. Under the Old Code, Order 14, Rule 2 read as follows:--
'Where issues both of law and of fact arise in the same suit, and the Court is of the 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',
5. Interpreting the provision in the Old Code, the Supreme Court in S. S. Khanna v. F. J. Dillon (AIR 1964 SC 497) held (at p. 498):--
'Under Order 14, Rule 2 where issues both of law and of fact arise in the same suit, and the Court is of the 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. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.'
G. K. Misra, J. (as his Lordship then was) in Ram Saraf v. Mani Dei (AIR 1969 Orissa 295) succinctly stated the law as (at pp. 295-296):--
'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 unnecessary harassment to the litigants. But in all other matters it is always desirable that the cases 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.....'
Harassment to the parties, protraction of the trial and unnecessary waste of rime were the considerations disfavouring piecemeal trial,
Similarly, in Basti Ram Roop Chand v. Radhey Shyam Gulab Chand (AIR 1973 All 499) it was held (at p. 500):--
'.....Under Rule 2 of Order 14 of the Code of Civil Procedure while the court is bound to try as preliminary issue a question of law on which the entire suit may be disposed of but where the question is not purely of law or it is a mixed question of law and fact, the court haa no jurisdiction to try issue as a prelimi-nary issue.....'
In Ghatmal Champalal v. Amaravathi Dyeing Pvt. Ltd. (AIR 1976 Andh Pra 70), Madhava Rao, J. held:
'The salutary rule of procedure which must be generally followed is that the Court should give its decision on all the issues in the case so as to avoid unnecessary remand and protraction of litigation.'
An exception, however, was made in favour of question of territorial jurisdic-tion. Under the old Code a duty was cast on the court to try preliminarily the issues of law which would dispose of the case or any part thereof.
6. However, the experience of six decades indicated that the provision was resulting in protracted litigations involv-ing frequent remand, harassment to par-ties and was unwholesome. So, the provision was substituted by Central Act '104 of 1976 by substituting Rule 2 of Order 14 as hereunder:--
'Rule 2. Court to pronounce judgment on all issues:
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after the issue has been determined, and may deal with the suit in accordance with the decision on that issue.'
7. It may be observed that the heading gives a direction to the provision by stating 'Court to pronounce judgment on all issues'. Instead of casting a duty on the court, as under the Old Code by the use of the expression 'shall', a discretion is conferred by using the expression 'it may try that issue first'.
8. The new provision makes it abun-dantly clear that the court in its discre-jtion may try an issue of law only if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. An issue of fact or a mixed issue of fact and law cannot be decided as a preliminary issue. Where an issue of jurisdiction is a question of fact or is a mixed question of law and fact, it cannot be decided as a preliminary issue; but it should be decided on merits along with the other issues. The object being avoidance of piecemeal trial and protracted litigation, in case of doubt all the issues should be tried at one and the same time.
In Ramdayal Umraomal v. Pannalal Jagannathji (AIR 1979 Madh Pra 153), the Full Bench obseved (at p 155):--
'..... Discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence.'
In Dhirendranath Chandra v. Apurba Krishna Chandra (AIR 1979 Pat 34), if was held (at pp. 35-36):--
'..... It is, therefore, clear that a departure from the ordinary rule provided in sub-rule (1) of Rule 2 can be made by the Court only in the circumstances mentioned in sub-rule (2) and even in these circumstances the Court has only a discretion that it may try an issue of law relating to the points mentioned in Clauses (a) and (b) of sub-rule (2) as a preliminary issue before framing other issues. There is, however, nothing in sub-rule (2) which makes it obligatory for the Court to try such an issue first in alt cases. If, therefore, the Court is of the opinion that in any particular case it will be more expedient to try all the issues together and therefore, if it refu-ses to try and decide any issue of law even on the points referred to in Cls. (a) and (b) of sub-rule (2) as a preliminary issue, it commits no error touching juris-diction.....'
In Cheni Ram v. Shanti Devi (AIR 1980 Raj 192), a question arose whether the court had territorial jurisdiction. To decide the said question, it was necessary to take evidence to find out the place where the cause of action arose. The question though related to jurisdiction, the prayer was rejected as the question was not a pure question of law.
9. Before the amendment the position had been made clear by the Supreme Court in Khanna v. Dillon (AIR 1964 SC 497) (supra). Any doubt that may have lingered thereafter was set at rest by the clear provision in the amended Rule 2.
10. Moreover, the trial of the suit on a preliminary issue being discretion-dry under the amended Rule 2 of Order 14, refusal of the court to decide the issue as a preliminary issue does not involve any question touching jurisdiction of the court. This revision application is, there- fore, not competent on this short around also.
11. In this case, the issue sought by defendant No. 4 to be decided as a preliminary issue was not a question of law. The determination would depend upon determination of certain facts which could be established by the parties leading evidence and assuming the answer of this issue of res judicata going against the plaintiff, it did not bring an end to the suit; but would bar trial of that very question at issue. As the pleadings snow, the plaintiff has claimed title through Gura as successors to Jema and Malli.
12. Considering it from any angle, the move of defendant No. 4 was misconceived and this revision accordingly has no merit and is dismissed. In the circumstances, there would be no order as to costs.