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Civil Revision No. 25 dated 28th August 1952, decided on 17th January 1953, against the order of Sub‑Judge, Bahawalnagar, dated the 1st June 1952.

------S. 115, O. XIV, r. 2‑Court refusing to decide issue of law first‑Not a case decided‑Revision not competent‑Party not entitled as a right to have issue of law decided first.

The refusal of the Court to take up the question of law in first instance is not a separate or distinct proceeding initiated by any application provided for in the Code which terminates by its refusal and amounts to a case having been decided within section 115, C. P. C. especially as it was entirely within the discretion of the Court to take up the evidence on other issues first as it did. It has therefore acted not illegally or with material irregularity in the exercise of its jurisdiction which might give rise to revision under the provisions of section 115, C. P. C.

The petitioner cannot claim as of right that the question of law should be decided first, which the Court could take up in case it was of the opinion that the matter in dispute could be disposed of on issue of law only under Order 14, rule 2, C.P.C.

1934 All. 986 ref.

.‑This is an application on behalf of Sharaf Din judgment‑debtor against the order of the Sub‑Judge, Bahawalnagar refusing to decide the issue of law before taking up the issues of fact and recording evidence thereon. The facts of this case may be shortly stated as follows:

Sher Muhammad decree‑holder had obtained a decree for possession of 19 acres of agricultural land against the petitioner Sharaf Din and applied to the Sub‑Judge, Bahawalnagar for the delivery of the same, In the course of execution proceed ings Abdul Aziz the Mukhtar‑i‑Am of the decree‑holder certified before the Court on 6th November 1950 that the decree had been duly adjusted between the parties and that the application for execution should be consigned in full satisfaction of the decree. The decree‑holder, Sher Muhammad, however, applied to the Court on 8th November 1950 by which he averred that Abdul Aziz was no longer his Mukhtar‑i‑Am but that he had colluded with the judgment‑debtor and 'Wad wrongly certified the alleged adjustment which should not be recorded by the Court as it was based on fraud. The Court after numerous adjournments struck five issues on 27th April 1952, four of which relate to facts and the fifth is an issue of law regarding the jurisdiction of the Court to try the matter under section 47, Cr. P. C. during the execution proceedings and not by a separate suit. After framing the issues parties were directed to lead their respective evidence thereon. On 1st June 1950 when certain witnesses of decree‑holder were present in Court, the judgment‑debtor made an application to the effect that issue of law should be tried before enquiry was set up on other issues. The Court however summarily disposed of this application by his order that the examination of the witnesses present could not be postponed. From this order the Judgment debtor has come in revision to this Court.

I have heard the arguments of counsel on both sides. The counsel for the petitioner has based his contention on Order 14, rule 2, C. P. C." which runs 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,"

No doubt this rule is mandatory in character and the only thing open to the Court is to form and express an opinion as to whether the case can be disposed of on the issue of law only. However, it would be undesirable to try cases piecemeal as it would lead to protracted litigations and repeated appeals. In the present case the Court has, summarily rejected the prayer to try the issue on a point of law and has not even expressed its opinion as to whether the question of law would be sufficient to dispose of the case. This is apparently an irregularity on the part of the Court not to have passed a definite order on the application, but the order under revision is an interlocutory one and it was entirely within the direction of the Court to try the issues in the order it deems fit hence the petitioner cannot claim as of right that the question of law should be decided first, which the Court could take up in case it was of the opinion that the matter in dispute could be disposed of on issue of law only under Order 14, rule 2, C. P. C. The Court has so far, however, expressed no opinion on the point, Apart from this it is difficult to understand why the petitioner did not make this request at the time when the issues were framed and only took up the' matter at a late stage when the witnesses for the decree‑holder were present in Court. As pointed out in 1934 All. 986 the refusal of the Court to take up the question of law in first instance is not a separate or distinct proceeding initiated by any application provided for in the Code which terminates by its refusal and amounts to a case having been decided within section 115, C. P. C. especially as it was entirely within the discretion of the Court to take up the evidence on other issues first as it did. It has therefore acted not illegally or with material irregularity in the exercise of its jurisdiction which might give rise to revision under the provisions of section 115, C. P. C. As the Court has not decided the point once for all, it is still open to it if satisfied at a late stage that the issue of law would dispose of the case completely to take up such question of law and decide it first. Hence this revision application is not entertainable and is reject ed. Parties to be informed accordingly. The parties shall bear their own costs.

A.H. Petition rejected.

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