TaxTMI 
TaxTMI 
1983 (6) TMI 207
X X X X Extracts X X X X
X X X X Extracts X X X X
....whether under O. 14, R. 2 of the Civil P. C. it is obligatory upon a Court to decide the issues relating to the jurisdiction the issues relating to the jurisdiction of the Court or bar to the suit created by any law for the time being in force as preliminary issues before the settlement of other isues or trial of the entire case as a whole. The argument has arisen because of the change in the terminology of R. 2 of O. 14 of the Code. According to Mr. Tijoriwalla the amendment not made any difference where the issues relate to the jurisdiction of the Court or to the legal bar to a suit. According to Mr. Tijoriwalla if such issues are raised the Court is obliged to hear and decide those issues despite what he calls the apparently discretionar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is capable of being disposed of on such issue or issues only. The second condition would be deemed to have been fulfilled if the decision of such issue or issues of law would dispose of the case or any part thereof if such decision is one way but not the other. If the Court reaches a decision that both the conditions have been fulfilled, it is obligatory upon the Court and the Court has no option but to determine such issue or issues of law as preliminary issues." If either of these conditions is not satisfied then there was no obligation upon the Court to decide any issue as a preliminary issue. However, there was a discretion despite the provision contained in O. 14, R. 2 enabling a Court to decide mixed question of fact and law if in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-r. (2). Pronounce judgment on all issues. (2) 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 an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 11. From the above it is easily seen that there is an obligati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment of Mr. Tijoriwalla that there is any duty or obligation upon the Court to try issues relating to the jurisdiction of the Court or to the legal bar to the maintenance of the suit as a preliminary issues. It is well-known that in several cases the Courts used to decide some issues without there being necessity to do so as preliminary issues from which either appeals or revisions were preferred and the proceedings in the suit were stayed. This prolonged rather than abridged the proceedings in a suit and it is obviously to obviate such situations that the Legislature amended O. 14, R. 2. While interpreting any amendment, it must be presumed that the Legislature was aware of the law prevalent before the amendment. If this is so then one mus....