1. ' Petitioners who were defendants in the civil suit filed by Pakistan International Airlines Corporation for recovery of Rs, 4,81,831.10. From them, on the basis of certain business dealings and relationship, detailed reference to which is not required, seek revision of an order dated 4-10-1989 of the trial Court declining to proceed first with certain preliminary issues and opting to decide all the issues on merits already settled in the case. Civil suit was instituted on 21-7- 1971, in the Civil Court at Lahore. In somewhat, say lengthy written statements, defendants repudiated their monetary liability and raised number of preliminary objections to the maintainability of the civil suit against them such as, that the Officer who signed and verified the plaint in the money suit was not authorised to do so; that if there was any power of attorney executed in favour of the said Officer by P.IA., it was ineffective for want of its registration; that form of the civil suit was defective, and, upon true business relationship between the parties, only remedy to sue was for rendition of accounts, and, that the suit suffered from a time bar and the plaint in it was deficiently stamped.
2. These objections were put in as preliminary issues on 13-1-1975. For facility of reference and clarity, these are reproduced below:-
(1) Whether the suit has been properly instituted by a competent person?
(2) What is the effect of subsequent verification of the plaint by Syed Masud Naqvi?
(3) Whether the power of attorney if any held by Mr. Mahmood Alam was void for want of registration and if so what is its effect?
(4) Whether this suit is not maintainable in its present form?
(5) Whether the suit is time-barred?
3. ' After settlement of these issues, suit was postponed for hearing of arguments. On 6-6-1975, after dealing with and disposing of certain miscellaneous petitions relating to change of onus of proof on certain issues, the trial Court proceeded to frame issues on merits also which are as follows:--
(6) Whether the plaintiff is entitled to recover a sum of Rs,4,81,831.10 from the defendants?
(7) Whether the plaintiff has not come to the Court with clean hands and if so what is its effect?
(8) Whether this suit is bad for want of prior notice and if so what is its effect?
(9) Whether the suit is bad for misjoinder of parties?
4. (10)Whether the plaint is deficient in court-fee? If so to what effect?
5. (11)Relief.
6. ' Thereupon, suit was adjourned for recording of evidence. Still later on 10-9-1976, on the application by the defendants, the trial Court decided to proceed first with the preliminary issues on hearing arguments only but on 8-11-1976, upon the request of plaintiff P.I.A. Again changed its mind by observing that issues 1 to 3 required recording of evidence and thus put the suit again for taking evidence on these issues. It appears that parties gave evidence and matter was adjourned for hearing of arguments till eventually the impugned order came to be made by the learned trial Judge deciding that it would proceed to hear full case on it merits for a final judgment on all the issues arising for determination in it. Against that order, this application has been filed for its revision. Learned counsel referred me to a ruling of Patna High Court in Janki Das and another v.
7. Kalu Ram and another AIR 1936 Patna 250 and, of this Court, in Muhammad Saleem v. Hafiz Ahmad Din PLD 1975 Lahore 425. He also referred me to provisions of Order XIV rule 2 Civil Procedure Code and submitted that it was mandatory for the trial Court to first deal with preliminary issues of law which touched the root of the case and were sufficient for disposal of the whole of the case. It was further submitted that the trial Court having itself once formed an opinion to hear the issues of law preliminary to issues on merits and recorded evidence also, its successor could not vary the procedure already adopted for taking different course for hearing full case on merits.
8. Before judging the contentions of the learned counsel on merits, I regret to observe that despite efflux of a long period of 19 years since the institution of the civil suit, it is not shown to have made much progress towards its finalization and is still lost in the labyrinths of preliminaries caused by nauseating unnecessary and avoidable adjournments, some at the instance of the parties and others by the trial Judge. A little more intelligent handling of the civil suit, and interest in its trial, by the parties and the Court could have avoided all that which is visible to the dismayed mind. Having observed upon the protracted trial of the suit, I shall now advert to the contentions of the learned counsel which turn upon proper construction of Order XIV Rule 2, Civil Procedure Code. It says that where both issues of law and fact arise in the suit and the Court is of the opinion that the suit or a part thereof can be disposed of on decision of issues of law only, it shall try those issues first, and, postpone the settlement of issues of fact till after the decision of issues of law. Upon close reading of the above rule, it appears obligatory upon the Court to carefully discover from the pleadings, whether the course visualized in it could be followed with advantage to save the parties from the agony of a protracted litigation and unnecessary expense. In Udmi Ram-Ram Sarup v. Ghasi Ram- Sakhan Lal AIR 1933 Allahabad 753, on the question whether the objection rleating to jurisdiction could be treated as preliminary issue, the Court observed:-- "In my opinion this rule can be interpreted in one way only, and that is that the Court must decide whether the case can be disposed of on the issue or issues of law only in the first place, and if it is of opinion that the case may be disposed of on those issues only, it has no option, but must decide those issues first. In the present case the Court has not put to itself the question at all, and has therefore expressed no opinion one way or the other. It has merely decided that it is not desirable that the case be decided piecemeal, and apparently it has been guided only by questions of convenience. The rule however as I have pointed out, makes it obligatory for the Court to consider whether the case may be disposed of on the legal issues alone, and as it has not done so it has undoubtedly acted irregularly, that is to say, otherwise than in accordance with the rules laid down in Sch.
1. The effect of this of course may be that the Court may waste a good deal of time, and the parties may be called on to undergo a good deal of expense to no purpose if it is ultimately found that the Court has no jurisdiction and this no doubt is the reason why R. 2, 0. 14, has been drafted so as to make it mandatory for the Court to decide the issue of law first in such a case."
9. Having thus observed, the Court directed the trial Court to decide the issue of jurisdiction before proceeding to hear the case on merits. In Janki Das and another v. Kalu Ram and another AIR 1936 Patna 250, dealing with the question whether issue of res judicata could be treated preliminary to the decision of issues on merits, the Hon'ble Chief Justice observed:-- "The fact is that some harmony has to be observed between the general principle that it is undesirable to try cases piecemeal and the specific and wholesome provision of 0. 14, R.2, Civil P.C., which is for the purpose of preventing the injustice of a party being able to force his opponent to go at great length into evidence when the simple decision on a point of law might render the investigation of the facts unnecessary. The learned Subordinate Judge had the matter of this application before him on a second occasion and he then delivered an extremely lengthy judgment frankly stating that his original decision was couched in terms which were inadequate to justify the order and endeavoring to justify the order by reference to the judgment of McNair, J., which, in my opinion, he misunderstood. He has nowhere definitely expressed the opinion that the case could not be disposed of on the issue of law only nor is there any ground in this case for supposing that the question of res judicata cannot be easily decided as a preliminary issue. It is only necessary for the decision of that question to look at the pleadings in the Cuttack case and in the Calcutta case, to examine the awards of the arbitrators, to refer to the judgment of McNair, J., and to the circumstances in which the Cuttack case was stayed and then to arrive at a decision as to whether or not the matter in issue is or is not a matter of res judicata by reason of the earlier Calcutta decision."
10. ' In later part of the judgment, it was observed:-- "To refuse to exercise the revisional jurisdiction in a case of this kind might give rise to the gravest hardship. The party injured has no right of appeal and a refusal to exercise jurisdiction would mean that the Subordinate Judge's unfettered decision might put the injured party to an enormous expense in going into issues which were unnecessary on the mere contention that the ultimate decision would be open to appeal. Interlocutors orders are certainly matters of discretion of the lower Court, but that discretion must be exercised according to the proper principle of justice and with regard to the proper interpretation of the rules in question, and I conceive it the duty of this Court to interfere when the discretion has not been exercised according to judicial principles.
0. 14, R.2 of the Code is mandatory; the only thing left open to the Court is to form and express an opinion of whether the case can be disposed of on the proposed issue of law only, but the opinion even if expressed, must be expressed a on some reasonable materials. In this case first of all the Court has of properly expressed its opinion, and secondly to express an opinion that the case cannot be disposed of on the question of law would be on the materials erroneous."
11. ' Basing itself on the above observations, the Court directed that the additional issue "Is the suit barred by principles of res judicator" be tried preliminary to the other issu s before the Court. In T.
12. Ganapathia Pillai v. Somasundaram Pillai and other AIR (37) 1950 Madras 213, again on question whether issue of jurisdiction raised in defence should be treated as preliminary issue, it was ruled:- - "Under 0. 14, R.2 Civil P.C., a Court has ample discretion to try an issue of law if it is of opinion that the case or any part thereof may be disposed of on issues of law only and for that purpose may postpone the settlement of issues of fact till after the issues of law have been determined.
13. Piecemeal trial of suits has been deprecated in many decisions. In the prolix pleadings which characterise mofussil suits every conceivable legal position is taken as to jurisdiction and maintainability and so on. They are frequently put forward without much basis only to be abandoned at the time of actual hearing. Trial Judges have to be constantly on guard against falling into the trap of giving findings on preliminary issues of law which may be taken upto higher Courts in appeal or in revision with the object of protracting the litigation indefinitely at the instance of a defendant. I am far from saying that the issue of jurisdiction raised in the present case is of such a nature. Mr. Jagadisa Iyer has drawn my attention to a Patna decision by Courtney-Terrell C.J. In Janaki Das v. Kaluram, AIR (23) 1936 Pat. 250: (162 I.C. 486), in which he interfered in revision and directed an issue of law framed in the suit as to whether it was barred by the principles of res judicata to be tried first as a preliminary issue. He observed that to refuse to exercise revisional jurisdiction in a case of that kind might give rise to the greatest hardship and that the injured party might be put to enormous expense in having issues elaborately tried which were quite unnecessary if the suit was in fact barred. The discretion that a trial Court is called upon to exercise under 0. 14, R.2, is a nice one to be determined by the facts of each case, in other words, whether the preliminary issue of law raised would be sufficient and is so clear cut that it will decide the suit finally once and for all."
14. ' In the same volume, in Sayyed Shah Abdul Latif Mohideen Khadiri Sujjatha Shibathullahi Sahib v.
15. Mohammad Labbai and others AIR (37) 1950 Madras 596, another Judge of the same Court observed:-- "Under 0. 14, R.2, Civil P.C., the Court has a discretion as to the order in which it should try the issues arising in the case and the power to dispose of the issues in the way which it considers to be most conducive to the rendering of justice. It has often been observed by this Court and by the Judicial Committee that in appealable cases, subordinate Courts should, as far as possible, receive the evidence adduced and decide all the issues in order to avoid a piecemeal trial and protracted litigation in the shape of an appeal and remand in case the decision of the subordinate Court on preliminary issues is not upheld by the appellate Court. If I felt that the issues of law raised in this case went to the root of the case and admitted of an obvious answer, I might, if I were sitting as a trial Judge, in my discretion, try the issues of law. Having considered the pleadings in the case, I hold that the learned subordinate Judge was right in refusing the application of defendant 1 and I am of the opinion that the suit should be tried on its merits and also on the issues suggested by the learned Advocate for the petitioner and a final and complete judgment rendered."
16. ' In Muhammad Saleem v. Hafiz Ahmad Din PLD 1975 Lahore 425, on the agreement of the parties, issue of jurisdiction was directed to be tired as preliminary to decision of issues on merits. In Resham Lal and others v. Anand Sarup and another AIR 1974 Punjab and Haryana 97, the issue relating to court-fee was ordered to be treated as preliminary issue. This was a case prior to the amendments to Order XIV, Rule 2 and section 115 of Civil Procedure Code in India as pointed out in a subsequent case from the same Court reported as Hardwari Lal v. Pohkar Mal and others AIR 1978 Punjab & Haryana 230. While comparing the pre-amended provisions with amended ones, the Court observed:-- "A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this is contained in sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring a discretion upon the Court that if it is of opinion that the case or any part thereof may be disposed of "on an issue of law only," it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by a law in force. It is indeed contended by the learned counsel for the petitioner that any question touching upon the jurisdiction of the Court, would automatically become an issue of law, but there is no warrant for this general proposition. An objection in regard to the jurisdiction of the Court may pertain either to the inherent lack of jurisdiction of the Court or the lack of jurisdiction on account of certain factual allegations. In the former case, where it is not necessary to go into any controversial facts, the question may be treated as an issue of law, but if it is necessary to decide a factual controversy before arriving at a conclusion on the challenge to jurisdiction, such a question cannot be treated as a pure question of law. The use of the word "an issue of law only" in the first part of sub-rule (2) has to be given its due meaning and import in the context. If every controversy pertaining to the jurisdiction of the Court whether dependent upon consideration of facts or otherwise, was to be deemed as an issue of law, the use of the words noticed above would be without purpose and this cannot obviously be the intention of the Legislature. I am of the firm view that the amendment to Order XIV, Rule 2 of the Code has changed the notions in regard to considering some or more of the issues as preliminary issues for being tried on preferential basis and the scope in this behalf has now been considerably tapered. In view of this amendment, there is no infirmity in the order passed by the trial Court refusing to try issue No,3 as a preliminary issue, more so when the determination of this issue required a probe into the market value of the property, which fact can be gone into when the whole case is tried. The matter can be viewed from another angle also. Even under Order XIV, R.2, the general rule for the adjudication of the entire case has been clearly emphasised. If a discretion is vested in the Court to act differently in certain contingencies, the exercise of this discretion, which is not shown to be in any way illegal or injudicious, cannot be the subject-matter of an attack in a Revision Petition."
17. ' Some similar observations regarding Order XIV, Rule 2 Civil Procedure Code are also available in a case from the Patna High Court reported in Smt. Sarojini Roy and another v. Shivaram Paddar and others AIR 1957 Patna 59. In Muhammad Nasrullah Khan v. Muhammad Ajaz Khan PLD 1975 Lah. 886, Aftab Hussain, J., as his Lordship then was, found that issues about jurisdiction or court-fee should be treated as preliminary issues.
18. From the above, it is clear that a dispute about jurisdiction of the Court, res judicata, valuation for court-fee, limitation if the facts on which it is raised are not in dispute, are ordinarily to be treated and tried as preliminary issues by the trial Court so as to save the parties from unnecessary protracted litigation but if an issue raises a mixed question of law and facts and for its decision, evidence is required to be taken by the Court, then it may not so treated. Viewed from this angle, the issues framed by the trial Court in the first instance were not purely issues of law but were admixed with question of fact also and could not have been decided without taking evidence from the parties as was clearly conceded by them in the trial Court. Piecemeal trial of civil suits causes delay in their decision and it is for this reason that such a mode of trial has not earned approval. As for the contention that the successor Judge could not alter the mode of trial adopted by his predecessor, there is no warrant for it in law. By the impugned order, the trial Court merely regulated the course of trial of the suit before it and in doing so, it is not shown to have infringed any procession law causing injustice to either party except the party interested in further delay.
19. Having considered the pleadings, taken note of protracted trial of the suit spreading over an expanse of 19 years with no real and substantial progress towards finalization of the mooted points, I am of the view that the trial Court rightly held that the suit should be tried on merits on all the issues for a final and complete judgment to be rendered in it. For these reasons, I would uphold the impugned order and dismiss the revision petition summarily and direct expeditious decision of the suit by the trial Court by avoiding unnecessary adjournments and attending to it carefully.