Rajendra Nath Mittal, J.:— This revision petition has been filed by the defendant against the order of the Additional Senior Sub Judge, Patiala dated 5th August, 1983, dismissing his application for trying issues, Nos. 1 and 2 as preliminary issues

2. Briefly the facts are that Smt. Sukhbans Kaur became a member of Anand Niketan Cooperative Society at Delhi. She was was allotted a lease hold plot No. B-11 in Anand Niketan, Daljit Singh defendant was her brother. She executed a power of attorney on 1st July, 1964 in favour of her brother with regard to the said property Later a house was constructed on that plot by the defendant. She instituted a suit for rendition of accounts of the expenditure made on the construction of the house and the amounts received from time to time from her or in her account from other persons looking after her other properties and of the income and expenditure of the property and for mandatory injunction directing the defendant to deliver to her the original power of attorney dated 1st July, 1964, the original lease deed dated 31st July, 1966 executed by and on behalf of the President of India in her favour and some other documents.

3. The suit was contested by the defendant who controverted the allegations of the petitioner and inter alia pleaded that the suit was not within limitation and the Civil Court at Patiala had no jurisdiction as the property was situated at Delhi.

4. On the pleadings of the parties various issues were framed. Issues Nos. 1 and 2 are as followed:—

“1. Whether the suit is within limitation?

2. Whether this Court has no jurisdiction to try this case?”

5. Smt. Sukhbans Kaur died during the pendency of the suit and her husband got himself impleaded as the plaintiff.

6. After the framing of the issues the suit was fixed for the evidence of the plaintiff. The defendant made an application under Order 14, rule 2 of the Code of Civil Procedure that issues Nos. 1 and 2 be treated as preliminary issues on the ground that if the said issus were decided in his favour, he would be saved from producing evidence on merits and the time of the Court would also be saved. It was opposed by the plaintiff. The trial Court dismissed the application. The defendant has come up in revision to this Court.

7. The question that arises for determination is whether the above issues should be tried as preliminary issues. It is not disputed that the defendant wants to lead evidence on the issues. Order 14, rule 2(1) of the Code provides that 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. Sub rule (2) reads as fellows:—

“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 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 that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”

8. From a reading of the rule it is evident that if an issue of law relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force, then it may be treated as a preliminary issue. Issue of law has not been defined in the Code. Normally if answer to an issue is determinable on the basis of some principle of law, that issue is called an issue of law. If the parties want to lead evidence on an issue, that ceases to be an issue of law. sub-rule (2) of rule 2 has been added by the Code of Civil Procedure (Amendment) Act. 19???6. Rule 2 of the Code before the Amendment Act. with slight change has been numbered now as sub-rule (1) of that rule. Rule 2 of the old Code reads as follows:—

“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.”

9. From a reading of the earlier and the present rule 2 it is evident that under the old rule all the issues of law were required to be tried as preliminary issues but according to the new rule the issues of law as mentioned in sub-rule (2) can be tried as preliminary issues. In the new rule 2(1) the word “shall” has been replaced by the word “may”. That shows that a discretion has been given to the Court to try the issue as a preliminary issue or not according to the circumstances of each case.

10. The Supreme Court interpreted Order 14, rule 2 of the Code in Major S.S Khanna v. Brjg. F.J Dhillon . AIR 1964 SC 497. The following observations of the Court may be read with advantage:—

“Under O. 14 R. 2 Code of Civil Procedure, 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 issue 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 exerciser only wherein 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.”

(emphasis supplied by underlining)

11. It is evident from the above observations that the issues which involve issues of law and fact cannot be treated as preliminary issues. The above observations are applicable even after coming into force of the amended rule.

12. Two similar cases came up before me in Gian Chand Jain v. His Highness Nawab Iftkhar Ali Khan . 1978 P.L.J 382. and Nabh Rat v. Sunder Dass . 1979 81 PLR 131. In the former case I came to the conclusion that if issues of law which go to the root of the case and are capable of being decided without leading any evidence of formal character, these may be treated as preliminary issues and decided as such. Otherwise all the issues, i.e, of law and fact should be tried together. If this course is not adopted and evidence is recorded piecemeal the trials are likely to be protracted and litigants put to great harassment. In Nabh Raj's case (supra) I again reiterated that where the issues of jurisdiction is not purely an issue of law but an issues which involves mixed questions of fact and law it cannot be tried as a preliminary issue. In Digvijaya Woolen Mills Ltd. v. Mohinder Kumar Jain . 1979 81 PLR 333. S.P Goyal, J., following Major S.K Khanna and Nabh Raj's cases (supra), observed that mixed questions of law and fact cannot be tried as a preliminary issue under Order 14, rule 2 of the Code of Civil Procedure even if it relate to the jurisdiction of the Court. Same view was taken by a Division Bench of this Court in Saraswati Spg. Mills v. Gheru Lal Lal Chand . 1980 All India L. L., R. 511. The relevant observations reads as follows:—

“A plain reading of this rule shows that the legislature has expressed disapproval of piecemeal trial of suits and even with regard to the two categories of issues mentioned above, the Court has been left with a wide discretion to treat them as preliminary issues or not. We are unable to find any support for the argument raised by the learned counsel for the petitioner from the language of the statues as it emerges after amendment.”

13. The learned counsel for the petitioner has placed reliance on Vaz Forwarding Pvt. Ltd. v. Punjab Tanneries Limited . 1982 84 PLR 191. wherein J.V Gupta, J., while interpreting the same rule, observed that as and when an objection as to territorial jurisdiction of the Court to try the suit was raised the same should be decided as a preliminary issue being a question of law since the plaintiff who had chosen his own forum to file the suit could not be allowed to frustrate the defendant by claiming that the said issue required the leading of evidence thereon; particularly when the defendant to whom the onus to prove the same had been placed, did not want to lead any evidence in the affirmative. The facts of that case were, however, distinguishable. The defendant there made a statement that on issue of jurisdiction he did not want to lead any evidence. In the present case, as already stated above, not only the plaintiff but the defendant also wants to lead evidence and that does not appear to be of a formal type.

14. Mr. Sibal has next argued that section 21 of the Code provides that an objection as to the place of suing shall not be allowed by an appellate Court unless objection is taken before settlement of issues and unless there had been a consequent failure of justice. If the objection regarding jurisdiction is decided by the trial Court against the defendant, in view of the above section he cannot raise that objection before the appellate Court unless he further shows that failure of justice had arisen. According to him, in that situation even if the parties want to lead evidence, still the issue should be treated as a preliminary issue. I am not impressed with the said submission. The portion of section 21 referred to by Mr. Sibal is applicable at the stage of appeal and not at the stage of trial of the suit. The trial Court in spite of the fact that no failure of justice has arisen, still can decide the question of jurisdiction against the plaintiff. In my view, the said portion of the section is not relevant for interpreting Order 14, rule 2 of the Code.

15. Before parting with the judgment a preliminary objection of the learned counsel for the respondent may be noticed. It is that if the trial Court came to the conclusion that the issue of jurisdiction should not be decided as a preliminary issue, that order of the Court is not revisable. In support of his contention he placed reliance on Saraswati Spg. Mills's case (supra). I do not find any substance in the submission of the learned counsel. It has been observed in the said case that normally speaking a decision under Order 14, rule 2 was not open to challenge in proceedings under section 115 of the Code. From the above observations. It is evident that no absolute rule has been laid down by the learned Bench that a revision petition cannot be entertained against a decision of the trial Court under Order 14, rule 2 of the Code.

16. For the aforesaid reasons, I do not find any merit in the revision petition and dismiss the same. The costs in the revision petition shall be the costs in cause.

R.M.S

Petition dismissed.