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Revision Application No. 178 of 1980, decided on 22nd February, 1981.

------O. XIV, r. 2‑Issues, decision of‑Court normally to decide all issues to avoid possibilities of remand‑Preliminary issues of law going into root of case and capable of disposing of whole suit or part of it‑Held, advisable to be decided first.

Province of East Pakistan v. Roshan Ara Begum, P L D 1970 Dacca 567 ref.

M. Sharif Khattak for Petitioner.

Ismail Munshi and Muainb Khan for Respondents.

Date of hearing. 22nd February, 1981,

This revision application has arisen out of an order passed on 1st May 1980 by the learned XVI Civil Judge 11 Class Karachi, whereby the learned trial Court on or application made under Order VII, rule 11 C. P. C. by the petitioner, passed the following orders :‑

"This case is at the stage of settlement of issues and obviously when the plea of limitation and jurisdiction have been raised in written statement, such issues are to be framed. Therefore, let the parties be afforded full opportunity to put up their case.

In the result, application under Order VII, rule 11, C. P. C. is rejected but with no order as to costs."

2. The learned counsel for the petitioner contended that in view of the facts stated in the plaint, the suit is not only barred by time but is beyond the pecuniary jurisdiction of the learned trial Court. The submis sion of the learned counsel is that the learned trial Court neither decided the question raised by him in his application nor has ordered the trial of these legal issues as preliminary issues in violation of the provisions of Order XI V, rule 2, C. P. C.

3. The learned counsel for parties, however, have informed that after framing of the issues including the issues on the points raised in application under Order VII, rule 11, C. P. C. evidence of the plaintiff has already been completed and the suit is now fixed for evidence of the defendants.

4. The contention of the learned counsel for the petitioner is that the learned trial Court decided to proceed with the suit without consider ing the necessity of proceeding first with the issues of law, a decision on which, according to the learned counsel, may dispose of the whole suit or any part thereof. It is correct that in an appealable case the Court should normally decide all the issues to avoid possibilities of remand. However, depending upon circumstances of a case, it may also be advis able to first decide preliminary issues of law which go to the root of the case anti are capable of disposing of the whole suit or part of it without recording any evidence, and thus terminate fruitless litigation at its very inception.

5. The principles governing the necessity of decision on issues of law as preliminary issues have been discussed in the case Province of East Pakistan v. Roshan Ara Begum (P L D 1970 Dacca 567), where the learned Dacca High Court with approval cited the following observations from the case of Burmah Eastern Ltd. (P L D 1967 Dacca 190);---

5. The principles involved are two‑fold ; in the first place, it contem plates that a still born suit should be properly buried, at its incep tion so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to re‑trace his steps, at the earliest possible moment so that if permissible under law, he may found a properly constituted case."

6. The learned counsel for the parties in view of the arguments advanced in this petition have agreed that the issues of law in this case should be decided firstly as preliminary issues by the learned trial Court before the evidence is completed or any further proceedings on merits take place in the suit.

In view of the above statement made by the learned counsel for the parties which indeed is in accordance with Order XIV, rule 2, C. P. C. it is directed that the learned trial Court before proceeding further in the matter on merits should decide the issues of law as preliminary issues.

7. With the above observation this revision application is accord ingly disposed of. Before concluding I would like to add that Mr. Ismail Munshi, learned advocate during his argument submitted that the plaint cannot be rejected even on the pleas raised tits behalf of the petitioner as it is always open to the Court to allow amendments of the pleading at any stage of the suit. However, no such application has been filed. If any application is so made for amendment, it would be for the trial Court to consider and decide it on its own merits and in accordance with the law.

M. Y. M. Order accordingly.

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