Issue Involving Mixed Questions Of Law And Fact Cannot Be Tried As Preliminary Issue: Allahabad High Court Reiterates
The Court also held that plea about maintainability of suit should be raised at the first instance in Written Statement to be tried as preliminary issue.
While holding that it would be of no use to direct the lower court to decide two issues as preliminary issues on an application moved by defendant-petitioner after a lapse of 18 years, the Allahabad High Court has reiterated that an issue involving mixed questions of law and fact cannot be tried as a preliminary issue.
The High Court also held that the plea regarding maintainability of the suit should be raised at the first instance in the Written Statement to be tried as a preliminary issue. The Court held that the application filed by the petitioner after ten years of penedncy of the suit could not be termed as bona fide.
The Single Bench of Justice Manish Kumar Nigam held, "Though there has been a slight amendment in the language of Order XIV Rule 2 C.P.C by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.”
Advocate Amit Kumar Pandey represented the Petitioner.
Factual Background
In this matter, an original suit was instituted by the plaintiff-respondents for the cancellation of the Will executed by one Ram Asrey in favour of the first defendant. The suit was contested by the defendants by filing a written statement. On the basis of pleadings, issues were framed by the trial court. A total of eight issues were framed. The third issue related to limitation, and the sixth issue was to the effect whether the suit in question was barred by Section 331 of U.P.Z.A. & L.R. Act, 1950. Thereafter, the evidence of the plaintiff was recorded, and an application was filed by the defendant to decide the third as well as the sixth issue as a preliminary issue.
Arguments
It was the case of the Petitioner that, in view of Rule 2 of Order XIV C.P.C., the court below must decide the issue relating to jurisdiction or a bar to the suit created by any law as a preliminary issue and thereafter, proceed with the matter.
Reasoning
The Bench noted that before the substitution by Code of Civil Procedure (Amendment ) Act, 1976, Order XIV, Rule 2 provided that where the 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 should 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 Bench further noticed that the unamended Rule 2 of Order XIV C.P.C. was held mandatory, and therefore it was obligatory on the court to treat the issues of law as preliminary issues and decide them by postponing other issues. “The position of law was altered by the Amendment Act of 1976. Sub-rule (1) of Rule 2 starts with non obstante clause and states that notwithstanding that the case may be disposed of on a preliminary issue, the court shall [subject to the provisions of subrule (2)], pronounce judgment on all issues”, it added.
The Bench explained, “In deciding whether the court should grant or refuse a prayer to try an issue of jurisdiction or a bar to a suit as a preliminary issue, harmony should be observed between two conflicting considerations, namely, (i) it is undesirable to try cases piecemeal as it would result in protracted litigation; and (ii) the specific and wholesome provision of Rule 2 enacted with a view to preventing injustice by forcing his opponent to drag him into long litigation when the case or substantial part thereof can be disposed of on a point of law without investigation of facts.”
“An issue as to the bar of suit created by any other law for the time being in force may be decided as a preliminary issue if the court is of the opinion that the case or part thereof may be disposed of on such issue only”, it added. Coming to the facts of the case, the Bench found that the suit was filed in 2006, issues were framed in December, 2008, and evidence of the plaintiff had also been recorded in part during this period. It was only in July, 2025 that the application was filed by the defendant to decide the two issues as preliminary issue. “In my view, the application filed by the petitioner cannot be said to be a bona fide application as he has chosen not to press the relief to decide issue Nos. 3 and 6 as preliminary issue for about 18 years”, it held.
Considering that the suit has been pending since 2006, the Bench held that it would be desirable for the lower court to decide the original suit expeditiously, preferably, within one year.
Cause Title: Paras @ Ram Paras v. Ram Charitra and another (Neutral Citation: 2026:AHC:57600)
Appearance
Petitioner: Advocates Amit Kumar Pandey, Kali Charan Yadav