WATANMAL BOOLCHAND Vs. N.V. STOOMVAART

JUDGEMENT

(1.) [His Lordship after stating the facts of the case, proceeded.] Twenty issues have been raised on behalf of defendants Nos. 4 and 5 and seven on behalf of defendants Nos. 1 and 2. Mr. Desai, the learned Counsel for defendants Nos. 4 and 5, applied that issues Nos. 1 to 7 of his clients be tried as preliminary issues and Mr. Nariman, the learned Counsel for defendants Nos. 1 and 2, applied that issues Nos. 2, 3 and 4 of his clients be tried as preliminary issues. Mr. Jhavery, the learned Counsel for the plaintiffs, opposed that application. Mr. Desai thereupon contended that issues Nos. 1. to 7 of his clients were issues of law and that, in view of the provisions of Order XIV, Rule 2, of the Code of Civil Procedure, this Court was bound to try, i.e., this Court had no other option but to try the said issues as preliminary issues. Mr. Nariman advanced similar contentions as regards issues Nos. 2, 3 and 4 raised on behalf of his clients. Mr. Jhavery, however, contended that under Order XIV, Rule 2, it is not obligatory on the Court to try any issues, even though they be issues of law only, as preliminary issues but that it is merely discretionary for the Court to do so, such discretion being a judicial discretion. On the basis of his contention that the provision of the said rule is discretionary and not mandatory, Mr. Jhavery wanted to further contend that the facts and circumstances in this case are such that the Court should exercise its said discretion against trying any issues as preliminary issues as a piecemeal trial is not desirable in this case. But I did not allow Mr. Jhavery to develop his said further contention as, in my opinion, the provision of the said rule is mandatory and not discretionary.

(2.) ORDER XIV, Rule 2 provides as under: 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.

(3.) I will now turn to the decided cases as regards the interpretation of the said Rule 2 which were cited before me.