B.A. Khan, J.
1. This revision petition raises ah interesting question how far is the Court bound to decide an issue as a preliminary issue?
2. Petitioner is facing a suit for eviction. Following two issues were framed by the trial Court and treated as preliminary issues:
i) Whether the Court has no jurisdiction to entertain and dispose of the suit as the property belongs to the Custodian? OPD
ii) Whether the suit is not maintainable forlack of necessary parties? OPD
3. Subsequently, respondent-plaintiff filed an application praying that these two issues be not treated as preliminary issues. His application was allowed. Petitioner is aggrieved of this and has filed this revision petition. He says that trial Court should have treated these issues as legal issues and should have decided these as preliminary issues. This in short is controversy involved in the present petition.
4. Order XIV, C.P.C. deals with framing of issues in the suit and Rule 2 is relevant for our purposes. It reads as under :--
'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'.
5. As would be seen, the provision confers a discretion on the Court in the matter. Whether to treat an issue as an issue of law and to try the same first, is dependent on the opinion of the Court. If upon the formation of opinion, it concludes that the issue is an issue of law it shall decide it first. Therefore, it cannot be said that wherever an issue appears to be a legal issue, the Court is bound in all events and circumstances treat it as preliminary issue and to decide it first. The Court has an option available and it falls within its province to proceed in the matter as it deems fit. This, however, is not to suggest that Court is free to exercise its jurisdiction whimsically or arbitrarily. On the contrary, it is bound to exercise its discretion judicially.
6. Nature of issues varies in the given facts and circumstances. An issue which may appear to be a pure legal issue superficially may turn out to be a mixed issue of law and fact. That is why a discretion is given to the Court to gauge and assess the true nature of an issue. Therefore, it can't be propounded as a general principle that wherever an issue appears to be a legal issue, it must be necessarily treated as preliminary issue anddecided first. It is for the trial Court to decide unless, of course, it decides perversely.
7. In the present case, the Court has given reasons for not treating the two issues as pure issues of law and I have no reason to strike any disagreement or take any contrary view. The trial Court, in my opinion, has exercised its direction judicially and to that extent, I find no infirmity or illegality in the order impugned. I accordingly reject this revision petition. Record be returned.
Cases referred :
i) AIR 1987 Cal 191.
ii) 1985 KLJ 457
iii) AIR 1985 P & H 84.