Das, J.:— This application is directed against an order of the Subordinate Judge of Deoghar directing the parties to address him on Issues Nos. 1, 2, 3 and 4 only. It is quite unnecessary to go into the antecedent history of the case; it is sufficient to say that fourteen issues were settled by the learned Subordinate Judge, and before the examination of the witnesses had commenced the defendant moved the Court for trial of Issues Nos. 1 to 4. The learned Subordinate Judge at first rejected the application but ultimately reviewed his own order and allowed the application. Mr. Sushil Madhab Mullick on behalf of the petitioners urges before us that there is serious prejudice to him in the course adopted by the learned Subordinate Judge.
2. Order XIV, R. 2 of the Code provides that:
“Where issues both of law aud of fact arise in the same suit aud 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.
3. Order XV, R. 3, provides that:
“where the parties are at issues on some questions of law or of fact and issues have been framed by the Court as hereinbefore provided if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision may pronounce judgment accordingly whether the summons has been issued for the settlement of issues only or for the final disposal of the suit.
4. Provided that where the summons has been issued for the settlement of issues only the parties or their Pleaders are present and none of them objects.”
5. The whole question which we have to determine is whether the Code of Civil Procedure has vested the Subordinate Judge with power to determine whether issues of law should be tried first. The Code has vested the Subordinate Judge with the power to determine the question, or in other words if such power exists, then, in my view the Subordinate Judges must decide for themselves whether circumstances exist in each particular case calling for the exercise of that power. In my opinion both O. XIV, R. 2 and O. XV, R. 3 give ample power to the Subordinate Judge to try issues of law first. It is quite true that the power under O. XIV, R. 2 can be exercised at the stage which may be conveniently described as the issue stage but O. XV, R. 3 gives power to the Subordinate Judges to proceed to determine the issues of law at a stage subsequent to the issue stage. Speaking entirely for myself I think it is far better that the Subordinate Courts should not try any case piecemeal, but that is a matter which is for the Subordinate Judges to decide.
6. Reliance was placed on a decision of this Bench but that case is clearly distinguishable. There the learned Subordinate Judge decided to try certain issues first after evidence had been gone into and the trial had already proceeded. Following a decision of the Calcutta High Court we held that the Subordinate Judge ought not to have exercised the power either under O. XIV, R. 2 or under O. XV, R. 3 at that stage. But here the hearing of the suit has not commenced and in my view it was open to the learned Subordinate Judge to determine for himself whether circumstances did exist calling for the exercise of power vested in the Subordinate Judge under the provisions of the Code to which I have referred. I am unable to say that the learned Subordinate Judge has either declined to exercise the jurisdiction which he had under the law or assumed a jurisdiction which he had not under the law or that in exercising the jurisdiction which he had he acted with illegality or material irregularity. The question is one of discretion and discretion only.
7. I must refuse this application with costs. Hearing-fee two gold mohurs.
8. Adami, J.:— I agree.
9. Application rejected.