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Regular Second Appeal No. 264 of 1979, decided on 17th September 1979.

---- O. XIV, r, M read with S. 99-Settlement of issues-Issues of law and of fact----Trial Court after framing all issues arising out of pleadings treating and disposing of first issue, happening to be an issue of fact, as a preliminary issue-Finding of fact recorded by trial Court on first issue affirmed by first appellate Court and not assailed before High Court-Failure of trial Court to act as required by provisions of r. 2, O. XIV not affecting merits of case or jurisdiction of Court Held, no exception can be taken to jurisdiction of trial Court to decide such issue, in circumstances. of case-[Janki Das and another v. Kalv Ram and another 162 1 C 486 not applicable].-[Jurisdiction].

The facts ,giving rise to this regular second appeal are that the appellant, Muhammad Sharif, filed a suit against the respondents, Roshan Din and two others, for possession of a piece of land by pre-emption. The suit was resisted by the respondents on various grounds whereupon the following issues were framed by the Civil Judge who was seized of the suit :-

(1) Whether the plaintiff has better right of pre-emption

(2) Whether Rs. 2 000, were actually paid or fixed in good faith as sale price 7

(3) Market value.

(4) Whether the plaintiff is estopped to bring this suit-

(5) Whether the suit is time barred

(6) Whether valuation of the suit is incorrect for purpose of court-fee and jurisdiction

(7) Whether description of the suit land is incorrect

(8) Whether the suit is for partial pre-emption

(9) Relief.

The learned Civil Judge took up the first issue as a preliminary issue and, in view of the evidence led thereon, decided the same against the appellant. As, by so doing, the learned trial Court had found that the appellant did not have a right of pre-emption against the respondents, the suit was dismisses. His first appeal against the judgment and decree of the learned Civil Judge also met the same fate. Hence this second appeal.

2. Learned counsel for the appellant contended that the procedure adopted by the learned Civil Judge in treating the first issue as a preliminary issue was violative of the provisions of Order XIV, rule 2 of the Code of Civil Procedure and, therefore, the judgment and decree passed by him were not sustainable. He maintained that it was only an issue of law which could be tried as a preliminary issue and since the first issue in the instant case was an issue of fact and not of law ii could not be taken up and decided separately. He relied on Janki Das and another v. Kalu Ram and another (l02 I C 486) and So wkabal Pandharianath Rajpurkar v. Sir Tukojirco Holkar (137 1 C 362) to support his arguments.

3. The authorities cited by the learned counsel for the appellant are of avail to the appellant because it was not laid down therein that if a decree is based on the decision of a preliminary issue, it can be set aside merely for the reason that the issue was wrongly treated and tried as such. Instead, the case of Sowkabai Pandharinath Rajapurkar approves of the procedure followed by the learned trial Court in the present case. This is clear from the following observations :-

"Strictly speaking under Order XIV, 1 do not think that there is any power in the Court to frame something in the nature of a preliminary issue of fact. No doubt when the Court has framed the issues which properly arise, the Judge may come to the conclusion that one or more of those issues should be tried first and independently, because the evidence on such issue or issues can be conveniently separated from the rest of the evidence and the finding on that issue or those issues nay render the trial of other issues unnecessary."

As indicated above, in the instant case the trial Court framed all the issue arising out of the pleadings and then treated and disposed of the first issue which was surely an issue of fact, as a preliminary issue.

4. Even if it be assumed that the learned Civil Judge had contravened the provisions of Order XIV, rule 2 of the Code of Civil Procedure, it is to be seen as to whether that lapse on his part could, by itself, justify the setting aside of the judgment and decree passed by him. Learned counsel for the appellant did not cite any authority for the proposition that the said defect alone would invalidate the decision of the learned Civil Judge. Such defects, in certain circumstances, are cured under section 99 of the Code of Civil Procedure, which reads thus :-

"No decree shall be reversed or substantially waited, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity m any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."

In the case before me, the failure of the trial Court to act as required by the provisions of rule 2 of Order XIV has not affected the-merits of the case or the jurisdiction of the Court inasmuch as the finding of fact recorded by the trial Court on the first issue and affirmed by the first Appellate Court ,that the plaintiff-appellant did not have a superior right of pre-emption has not been assailed before me and no exception can possibly be taken to the jurisdiction of the trial Court to decide the said issue. Therefore, even if the trial of the first issue as a preliminary issue was an irregularity it is of no consequence.

5. There is no merit in this appeal. It. is, therefore, dismissed in liming.

S. Q. Appeal dismissed.

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