Preliminary Issue -- Application Moved After Commencement of Trial -- Power under O.14 R.2(2) CPC exhausts once trial of all issues has commenced
(i) Civil Procedure Code, 1908, O.14 R.2(2) -- Preliminary Issue -- Conditions for Trying Issue First -- An issue can be tried first under Order 14 Rule 2(2) only where it is an issue of law alone, relates to the jurisdiction of the court or a statutory bar to the suit, and the court forms the opinion that the case or part of it may be disposed of on that issue. Even where these conditions are satisfied, the power is discretionary, and mixed questions of law and fact cannot ordinarily be tried as a preliminary issue. (ii) Civil Procedure Code, 1908, O.14 R.2(2) -- Preliminary Issue -- Framing of Issues Distinguished from Trial of Issues -- Framing all issues in a suit does not exhaust the power under Order 14 Rule 2(2); the power is exhausted only once the court has embarked upon trial of the issues generally. The dividing line is whether trial of the issues generally has commenced, not whether all issues have been framed. The provision authorises prospective ordering of trial, not retrospective severance of an issue from an ongoing composite trial. (iii) Civil Procedure Code, 1908, O.14 R.2(2), S.151 -- Preliminary Issue -- Section 151 Cannot Revive Exhausted Power -- The nomenclature of an application does not determine the source or extent of the court's power. Since Order 14 Rule 2 specifically regulates trial of an issue first, the inherent power under Section 151 CPC cannot be invoked to bypass the conditions, sequence, or temporal limits attached to that provision once it has become inapplicable.
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