Holding

Res judicata is a mixed question of law and fact and cannot be tried as a preliminary issue under Order XIV Rule 2; therefore the High Court's direction to frame such an issue is set aside.

Summary

The appellants filed a suit for declaration of ownership of property against the respondent. The respondent sought to frame several preliminary issues, including whether the suit was barred by res judicata, under Order XIV Rule 2(2) of the CPC. The trial court dismissed the application, but the High Court, on revision, directed the trial court to frame a preliminary issue on res judicata. The Supreme Court examined whether res judicata, being a mixed question of law and fact, can be tried as a preliminary issue and whether the court must pronounce judgment on all issues. It held that mixed questions of law and fact cannot be treated as preliminary issues; only issues relating to jurisdiction or a statutory bar may be decided preliminarily. Consequently, the High Court’s direction was set aside and the trial court must record findings on all issues. The appeal was allowed.

Issues considered

Can a plea of res judicata, which is a mixed question of law and fact, be framed and decided as a preliminary issue under Order XIV Rule 2 of the CPC?
Does Order XIV Rule 2 (as amended) obligate the trial court to pronounce judgment on all issues, notwithstanding the existence of a preliminary issue?
Is the High Court's order directing the trial court to frame a preliminary issue on res judicata sustainable?

Legislation cited

Subjects

Order XIV Rule 2preliminary issueres judicatamixed question of law and factCivil Procedure Codejurisdictionbar to suitexpeditious disposal

Judgment

46 [2022]
SUPREME COURT 4 S.C.R. 46
REPORTS [2022] 4 S.C.R.

A SATHYANATH & ANR.
v.
SAROJAMANI
(Civil Appeal No. 3680 of 2022)
B MAY 06, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Code of Civil Procedure, 1908 : Or. XIV r 2 – Court to
pronounce judgment on all issues – Suit for declaration by the
appellant against the respondent – Application by the respondent
C
seeking framing of issues u/Or. XIV r 2(2), to treat those as
preliminary issues – Dismissed by trial court – In revision petition,
the High Court issued direction to trial court to frame preliminary
issue as to whether the suit is barred by res judicata – Sustainability
of – Held: Not sustainable – If the issue is a mixed issue of law and
D fact, or issue of law depends upon the decision of fact, such issue
cannot be tried as a preliminary issue – Preliminary issues can be
those where no evidence is required and on the basis of reading of
the plaint or the applicable law, if the jurisdiction of the Court or
the bar to the suit is made out, the Court may decide such issues
with the sole objective for the expeditious decision – Order of the
E
High Court to direct the trial court to frame preliminary issue on
the issue of res judicata is not desirable to ensure speedy disposal
of the lis between parties – Or. XIV r.2 had salutary object in mind
that mandates the Court to pronounce judgments on all issues subject
to the provisions of sub-Rule (2) – However, in case where the issues
F of both law and fact arise in the same suit and the Court is of the
opinion that the case or any part thereof may be disposed of on an
issue of law only, it may try that suit first, if it relates to jurisdiction
of the Court or a bar to the suit created by any law for the time
being in force – It is only in those circumstances that the findings
on other issues can be deferred – Res judicata is a mixed question
G
of law and fact depending upon the pleadings of the parties, the
parties to the suit etc. – It is not a plea in law alone or which bars
the jurisdiction of the Court or is a statutory bar under clause (b)
of sub-Rule (2) – Thus, the order of the High Court remanding the
matter to the trial court to frame preliminary issues runs counter to
H the mandate of Or. XIV r 2, and is set aside.
46
SATHYANATH & ANR. v. SAROJAMANI 47

Allowing the appeal, the Court A
HELD: 1.1 The provisions of Order XIV Rule 2 CPC are
part of the procedural law, but the fact remains that such
procedural law had been enacted to ensure expeditious disposal
of the lis and in the event of setting aside of findings on
preliminary issue, the possibility of remand can be avoided, as B
was the language prior to the unamended Order XIV Rule 2. If
the issue is a mixed issue of law and fact, or issue of law depends
upon the decision of fact, such issue cannot be tried as a
preliminary issue. In other words, preliminary issues can be those
where no evidence is required and on the basis of reading of the
plaint or the applicable law, if the jurisdiction of the Court or the C
bar to the suit is made out, the Court may decide such issues
with the sole objective for the expeditious decision. Thus, if the
Court lacks jurisdiction or there is a statutory bar, such issue is
required to be decided in the first instance so that the process of
civil court is not abused by the litigants, who may approach the D
civil court to delay the proceedings on false pretext. [Para 20][61-
G-H; 62-A-B]
1.2 The order of the High Court to direct the trial court to
frame preliminary issue on the issue of res judicata is not desirable
to ensure speedy disposal of the lis between parties. Order XIV E
Rule 2 of the Code had salutary object in mind that mandates the
Court to pronounce judgments on all issues subject to the
provisions of sub-Rule (2). However, in case where the issues of
both law and fact arise in the same suit and the court is of the
opinion that the case or any part thereof may be disposed of on
an issue of law only, it may try that suit first, if it relates to F
jurisdiction of the Court or a bar to the suit created by any law for
the time being in force. It is only in those circumstances that the
findings on other issues can be deferred. It is not disputed that
res judicata is a mixed question of law and fact depending upon
the pleadings of the parties, the parties to the suit etc. It is not a G
plea in law alone or which bars the jurisdiction of the Court or is
a statutory bar under clause (b) of sub-Rule (2). [Para 31][66-E-
G]
1.3 The objective of the provisions of Order XLI Rules 24
and 25 is that if evidence is recorded by the trial court on all the H
48 SUPREME COURT REPORTS [2022] 4 S.C.R.

A issues, it would facilitate the first appellate court to decide the
questions of fact even by reformulating the issues. It is only when
the first appellate court finds that there is no evidence led by the
parties, the first appellate court can call upon the parties to lead
evidence on such additional issues, either before the appellate
court or before the trial court. All such provisions of law and the
B
amendments are to ensure one objective i.e., early finality to the
lis between the parties. [Para 32][66-G-H; 67-A]
1.4 Keeping in view the object of substitution of sub-Rule
(2) to avoid the possibility of remanding back the matter after
the decision on the preliminary issues, it is mandated for the trial
C court under Order XIV Rule 2 and Order XX Rule 5, and for the
first appellate court in terms of Order XLI Rules 24 and 25 to
record findings on all the issues. [Para 33][67-B]
1.5 The order of the High Court remanding the matter to
the trial court to frame preliminary issues runs counter to the
D mandate of Order XIV Rule 2 of the Code and thus, not sustainable
in law. The trial court would record findings on all the issues so
that the first appellate court has the advantage of the findings so
recorded and to obliviate the possibility of remand if the suit is
decided only on the preliminary issue. The order passed by the
E High Court is set aside. [Paras 34 and 35][67-C-D]
Jamia Masjid v. K.V. Rudrappa (Since Dead) by LRs. &
Ors. 2021 SCC OnLine SC 792; Ramesh B. Desai and
Ors. v. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638
: [2006] 3 Suppl. SCR 414; Major S. S. Khanna v. Brig.
F F. J. Dillon AIR 1964 SC 497 : [1964] SCR 409; Sunni
Central Waqf Board and Ors. v. Gopal Singh Vishrad
and Ors. AIR 1991 ALL 894; Prithvi Raj Jhingta &
Anr. v. Gopal Singh & Anr. AIR 2007 HP 11; Hardwari
Lal v. Pohkar Mal and Ors. AIR 1978 P&H 230;
Dhirendranath Chandra v. Apurba Krishna Chandra
G and Ors. AIR 1979 Pat 34; Usha Sales Ltd. v. Malcolm
Gomes and Ors. AIR 1984 Bom 60; Smt. Aruna Kumari
v. Ajay Kumar AIR 1991 J&K 1; Sardar Amarjit Singh
Kalra (Dead) by Lrs. v. Pramod Gupta (Smt) (Dead) by

H
SATHYANATH & ANR. v. SAROJAMANI 49

Lrs. & Anr. (2003) 3 SCC 272 : [2002] 5 Suppl. SCR A
350; Kailash v. Nanhku & Ors. (2005) 4 SCC 480 :
[2005] 3 SCR 289; Sugandhi v. P. Rajkumar (2020) 10
SCC 706; A. Shanmugam v. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai Sangam
& Ors. (2012) 6 SCC 430 : [2012] 4 SCR 74; Abdul
B
Rahman v. Prasony Bai & Anr. (2003) 1 SCC 488 :
[2002] 4 Suppl. SCR 260; Srihari Hanumandas Totala
v. Hemant Vithal Kamat & Ors. (2021) 9 SCC 99 –
referred to.
Case Law Reference
C
[1964] SCR 409 referred to Para 6
AIR 1991 ALL 894 referred to Para 9
AIR 2007 HP 11 referred to Para 10
AIR 1978 P&H 230 referred to Para 11 D
AIR 1979 Pat 34 referred to Para 12
AIR 1984 Bom 60 referred to Para 13
AIR 1991 J&K 1 referred to Para 14
[2006] 3 Suppl. SCR 414 referred to Para 15 E
[2002] 5 Suppl. SCR 350 referred to Para 17
[2005] 3 SCR 289 referred to Para 18
(2020) 10 SCC 706 referred to Para 19
[2012] 4 SCR 74 referred to Para 21 F
[2002] 4 Suppl. SCR 260 referred to Para 23
(2021) 9 SCC 99 referred to Para 23
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3680
of 2022. G
From the Judgment and Order dated 03.09.2021 of the High Court
of Judicature at Madras in C.R.P. (PD) No. 680 of 2021.
S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan, R.
Sudhakaran, Vikash Kumar, Advs. for the Appellants.
H
50 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Siddharth Naidu, V. Balachandran for M/s Ksn & Co., Advs. for
the Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
B 1. The challenge in the present appeal is to an order dated 3.9.2021
whereby in the revision petition filed by the defendant under Article 227
of the Constitution of India, the trial court was directed to frame
preliminary issue as to whether the suit is barred by res judicata.
2. The plaintiffs-appellants filed O.S. No. 95 of 2016 against the
C respondent, their paternal aunt. The appellants claimed a declaration for
declaring the appellants as absolute owners of the suit property, judgment
and decree in O.S. No. 65 of 2003 as null and void, and, for permanent
injunction restraining the defendant and their agents in disturbing the
peaceful possession and enjoyment of the suit property by the appellants
in any manner. Initially, the defendant filed an application under Order
D VII Rule 11 of the Code of Civil Procedure, 19081 for rejection of the
plaint but the same was dismissed by the trial court on 20.6.2017. It is
thereafter, the defendant filed an application to frame issues under Order
XIV Rule 2(2) of the Code to treat the following as the preliminary
issues:
E “1. Whether the suit is not hit by resjudicata and estoppel as claimed
by the defendant in the written statement in Para- 10 & 11.
2. Whether the suit is not hit by resjudicata and estoppel as claimed
by the defendant in the written statement in Para-12.
3. Whether the suit is not barred by limitation as contented by the
F
defendant in the written statement in Para-13.
4. Whether the Plaintiffs have deliberately and wantonly abused
the process of the court, as contented by the defendant in the
written statement in Para-15 and 16.
G 5. Whether the suit is not valued properly and court fee paid is
deficient as claimed by the defendant in Para 18 of the Written
statement.”
3. The learned trial court dismissed the application of the defendant
on 3.10.2019. Such order of the learned trial court was challenged in
1
H For short, the ‘Code’
SATHYANATH & ANR. v. SAROJAMANI 51
[HEMANT GUPTA, J.]

revision petition under Article 227 of the Constitution of India wherein A
the High Court ordered the framing of issue of res judicata as preliminary
issue.
4. Learned counsel for the appellants relied upon provisions of
Order XIV Rule 2 of the Code to contend such Order XIV Rule 2 has
been substituted by Central Act No. 104 of 1976, whereby the Court is B
mandated to pronounce judgment on all issues, even though the suit can
be disposed of on a preliminary issue. It was argued that such amendment
was necessitated to avoid delay in the disposal of the proceedings
inasmuch as if only a preliminary issue is decided, the further appeal and
revision would be preferred only against the preliminary issue and after
the preliminary issue is decided in favour of the plaintiffs, the evidence C
has to be led on the remaining issues. Therefore, to ensure expeditious
disposal of the proceedings and to avoid possibility of remand by the
appellate or revisional jurisdiction, it was made mandatory for the Court
to record reasons on all the issues. Such finding would obliviate the
possibility of remand at appellate or revisional stage, even if the finding D
on preliminary or other issues are to be reversed.
5. Order XIV Rule 2 before amendment by the Act No. 104 of
1976 reads thus:
“R. 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 E
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.”
6. The said provision came up for consideration before this Court F
in a judgment reported as Major S. S. Khanna v. Brig. F. J. Dillon2. It
was held that under Order XIV Rule 2 of the Code 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 postpone the settlement of the issues of G
fact until other issues of law have been determined. It was held as under:
“18. ……. Under Order 14 Rule 2 Code of Civil Procedure, 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
2
AIR 1964 SC 497 H
52 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 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. The
jurisdiction to try issues of law apart from the issues of fact may
be exercised only where in the opinion of the Court the whole suit
may be disposed of on the issues of law alone, but the Code confers
B
no jurisdiction upon the Court to try a suit on mixed issues of law
and fact as preliminary issues. Normally all the issues in a suit
should be tried by the Court: not to do so, especially when the
decision on issues even of law depend upon the decision of issues
of fact, would result in a lopsided trial of the suit.”
C 7. The Order XIV Rule 2 after the substitution of Rule 2 by the
Act No. 104 of 1976, effective from 1.4.1977, reads thus:
“2.Court to pronounce judgment on all issues.—(1)
Notwithstanding that a case may be disposed of on a preliminary
issue, the Court shall, subject to the provisions of sub-rule (2),
D 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—
E
(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
F may deal with the suit in accordance with the decision on that
issue.”
8. Some other provisions of the Code, which are relevant to decide
the issues raised in the preset appeal are as follows:
“ORDER XX
G
JUDGMENT AND DECREE
“5. Court to state its decision on each issue. – In suits in which
issues have been framed, the Court shall state its finding or decision,
with the reasons therefor, upon each separate issue, unless the
H
SATHYANATH & ANR. v. SAROJAMANI 53
[HEMANT GUPTA, J.]

finding upon any one or more of the issue is sufficient for the A
decision of the suit.
ORDER XLI
APPEALS FROM ORIGINAL DECREES
24. Where evidence on record sufficient, Appellate Court may B
determine case finally. - Where the evidence, upon the record is
sufficient to enable the Appellate Court to pronounce judgment,
the Appellate Court may, after resettling the issues, if necessary,
finally determine the suit, notwithstanding that the judgment of
the Court from whose decree the appeal is preferred has proceeded
wholly upon some ground other than that on which the Appellate C
Court proceeds.
25. Where Appellate Court may frame issues and refer them for
trial to Court whose decree appealed from. - Where the Court
from whose decree the appeal is preferred has omitted to frame
or try any issue, or to determine any question of fact, which appears D
to the Appellate Court essential to the right decision of the suit
upon the merits, the Appellate Court may, if necessary, frame
issues, and refer the same for trial to the Court from whose decree
the appeal is preferred, and in such case shall direct such Court to
take the additional evidence required; E
and such Court shall proceed to try such issues, and shall return
the evidence to the Appellate Court together with its findings
thereon and the reasons therefor [within such time as may be
fixed by the Appellate Court or extended by it from time to time.”
9. The amended provision of Order XIV came up for consideration F
before the Full Bench of Allahabad High Court in a judgment reported
as Sunni Central Waqf Board and Ors. v. Gopal Singh Vishrad and
Ors.3 It was held that material changes had been brought about by
substituting Order XIV Rule 2 of the Code. The word ‘shall’ in the
unamended provision has been replaced by the word ‘may’ in the
G
substituted provision, therefore, it is now discretionary for the Court to
decide the issue of law as a preliminary issue, or to decide it along with
the other issues. It was further held that even all issues of law cannot be
decided as preliminary issues and only those issues of law falling within

3
AIR 1991 ALL 89 H
54 SUPREME COURT REPORTS [2022] 4 S.C.R.

A the ambit of clause (a) and (b) of sub-rule (2) of Rule 2 could be decided.
The High Court held as under:
“22. Under the above provision once the court came to the
conclusion that the case or any part thereof could be disposed of
on the issues of law only it was obliged to try those issues first
B and the other issues could be taken up only thereafter, if necessity
survived. The court had no discretion in the matter. This flows
from the use of the word “it shall try those issues first”. Material
change has been brought about in legal position by amended O.
14, R. 2 which reads as follows:—
C xxx xxx xxx
24. The word “shall” used in old O. 14, R. 2 has been replaced in
the present Rule by the word “may”. Thus now it is discretionary
for the Court to decide the issue of law as a preliminary issue or
to decide it along with the other issues. It is no longer obligatory
D for the Court to decide an issue of law as a preliminary issue.
25. Another Change brought about by the amended provision is
that not all issues of law can be decided as preliminary issues.
Only those issues of law can be decided as preliminary issues
which fell within the ambit of cls. (a) and (b) of sub-r. (2) of R. 2
E of O. 14. Cl. (a) mentions “jurisdiction of the Court” and clause
(b) deals with “bar to the suit created by any law for the time
being in force.” In the present case cl. (a) is not attracted. The
case is sought to be brought within the ambit of cl. (b). For bringing
it under cl. (b) Limitation Act and the Muslim Waqf Act have
been invoked.”
F
10. A Full Bench of Himachal Pradesh High Court in a judgment
reported as Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr.4, held
as under:
“8. The legislative mandate is very clear and unambiguous. In the
light of the past experience that the old Rule 2 whereby, in the
G
fact-situation of the trial Court deciding only preliminary issues
and neither trying nor deciding other issues, whenever an appeal
against the judgment was filed before the Appeal Court and the
Appeal Court on finding that the decision of the trial Court on
4
H AIR 2007 HP 11
SATHYANATH & ANR. v. SAROJAMANI 55
[HEMANT GUPTA, J.]

preliminary issues deserved to be reversed, the case per force A
had to be remanded to the trial Court for trial on other issues. This
resulted in delay in the disposal of the cases. To eliminate this
delay and to ensure the expeditious disposal of the suits, both at
the stage of the trial as well as at the appeal stage, the legislature
decided to provide for a mechanism whereby, subject to the
B
exception created under sub-rule (2), all issues, both of law and
fact were required to be decided together and the suit had to be
disposed of as a whole, of course based upon the findings of the
trial Court on all the issues, both of law and fact.
9. Based upon the aforesaid reasons therefor, and in the light of
legislative background of Rule 2 and the legislative intent as well C
as mandate based upon such background, as well as on its plain
reading, we have no doubt in our minds that except in situations
perceived or warranted under sub-rule (2) where a Court in fact
frames only issues of law in the first instance and postpones
settlement of other issues, under sub-rule (1), clearly and explicitly D
in situations where the Court has framed all issues together, both
of law as well as facts and has also tried all these issues together,
it is not open to the Court in such a situation to adopt the principle
of severability and proceed to decide issues of law first, without
taking up simultaneously other issues for decision. This course of
action is not available to a Court because sub-rule (1) does not E
permit the Court to adopt any such principle of severability and to
dispose of a suit only on preliminary issues, or what can be termed
as issues of law. Sub-rule (1) clearly mandates that in a situation
contemplated under it, where all the issues have been framed
together and have also been taken up for adjudication during the F
course of the trial, these must be decided together and the judgment
in the suit as a whole must be pronounced by the Court covering
all the issues framed in the suit.”
11. A Single Bench of Punjab and Haryana High Court in a
judgment reported as Hardwari Lal v. Pohkar Mal and Ors.5 compared G
the provision of Order XIV Rule 2 prior to and after the amendment and
held as under:
“5. A comparative reading of the said provision as it existed earlier
to the amendment and the one after amendment would clearly
5
AIR 1978 P&H 230 H
56 SUPREME COURT REPORTS [2022] 4 S.C.R.

A indicate that the consideration of an issue and its disposal as
preliminary issue has now been made permissible only in limited
cases. In the unamended Code, the categorisation was only
between issues of law and of fact and it was mandatory for the
Court to try the issues of law in the first instance and to postpone
the settlement of the issues of fact until after the issues of law
B
had been determined. On the other hand, in the amended provision
there is a mandate to the Court that notwithstanding that a case
may be disposed of on a preliminary issue, the Court has to
pronounce judgment on all the issues. The only exception to this is
contained in sub-rule (2). This sub-rule relaxes the mandate to a
C limited extent by conferring a discretion upon the Court that if it 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. The exercise
of this discretion is further limited to the contingency that the issue
to be so tried must relate to the jurisdiction of the Court or a bar to
the suit created by a law in force.”
D
12. A Single Bench of Patna High Court in a judgment reported
as Dhirendranath Chandra v. Apurba Krishna Chandra and Ors.6
held that even if the case may be disposed of on a preliminary issue, the
Court is bound to pronounce judgment on all the issues, subject to the
provision in sub-rule (2) according to which if the case or any part thereof
E may be disposed of on issue of law only and if that issue relates to
jurisdiction of the Court or a bar to the suit created by law for the time
being in force, the Court may try such issue first. The High Court held
as under:
“6. A plain reading of R. 2 will show that ordinarily even if the
F case may be disposed of on a preliminary issue, the Court is bound
to pronounce judgement on all issues. This ordinary rule is subject
to only one exception which has been provided in sub-rule (2)
according to which if the case or any part thereof may be disposed
of on issue of law only and if that issue of law relates to the
G jurisdiction of the Court or a bar to the suit created by any law for
the time being in force the court may try such issue first. It is,
therefore, clear that a departure from the ordinary rule provided
in sub-rule (1) of R. 2 can be made by the Court only in the
circumstances mentioned in sub-rule (2) and even in these
6
H AIR 1979 Pat 34
SATHYANATH & ANR. v. SAROJAMANI 57
[HEMANT GUPTA, J.]

circumstances the Court has only a discretion that it may try an A
issue of law relating to the points mentioned in clauses (a) and (b)
of sub-rule (2) as a preliminary issue before framing other issues.
There is, however, nothing in sub-rule (2) which in my opinion
makes it obligatory for the Court to try such an issue first in all
cases. If, therefore, the Court is of opinion that in any particular
B
case it will be more expedient to try all the issues together and
therefore, if it refuses to try and decide any issue of law even on
the points referred to in cls. (a) and (b) of sub-rule (2) as a
preliminary issue before taking up other issues.
xxxx’’
C
13. A Single Bench of Bombay High Court in a judgment reported
as Usha Sales Ltd. v. Malcolm Gomes and Ors.7 held that after the
amendment, a duty is cast upon the Court that it must proceed to hear all
the issues and pronounce the judgment on the same, except that the
Court may try an issue relating to the jurisdiction of the Court or to the
legal bar to the suit as a preliminary issue. It was held to be more in the D
nature of discretion rather than a duty. It was held as under:
“11. From the above it is easily seen that there is an obligation
cast upon the Court that even though a case may be disposed of
on a preliminary issue the Courts shall subject to the provision of
sub-rule (2) pronounce judgment on all issues. In other words, the E
obligation to decide a question of law as a preliminary issue if that
decision disposes of the case or part of the case is no longer,
there. Similarly, the discretion to decide any other issue as a
preliminary issue has been taken away totally from the Court. On
the other hand, a duty is cast upon the Court that it must proceed F
to hear all the issues and pronounce judgment on the same.
12. There is, however, a small exception carved out to the above
provision. The Court may try an issue relating to the jurisdiction
of the Court or to the legal bar to the suit as a preliminary issue
but this is more in the nature of a discretion rather than a duty and G
the Court is not bound to try any issue despite the provision
contained in sub-r. (2) of R. 2 of O. 14 of the Code. The words “it
may try” are clearly indicative of the fact that discretion is given

7
AIR 1984 Bom 60 H
58 SUPREME COURT REPORTS [2022] 4 S.C.R.

A to the Court and no duty is cast upon the Court to decide any
issue as a preliminary issue.”
14. A Single Bench of Jammu and Kashmir High Court in a
judgment reported as Smt. Aruna Kumari v. Ajay Kumar8 held as
under:
B “4. …..Admittedly both the parties have to lead evidence regarding
both the issues. In case issue No. 2 is allowed to be treated as
preliminary the parties will certainly lead evidence in the case and
instead of disposing of the case expeditiously it will prolong the
matter and frustrate the very basis of law contained in Order
C XIV, Rule 2, Civil Procedure Code. The evidence to be led by
both the parties will almost cover both the issues and it cannot,
therefore, be said that by allowing issue No. 2 to be treated as
preliminary the trial of the case would be expedited. When we
review the whole law on the point it becomes clear that where
issue of jurisdiction is a mixed question of law and fact requiring
D evidence to be recorded by both the sides same cannot be treated
as a preliminary issue.”
15. The matter has also been examined by this Court in a judgment
reported as Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and
Ors.9 wherein it was held as under:
E
“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where
issues both of law and of fact arise in the same suit, and the court
is of the 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
F created by any law for the time being in force. The provisions of
this Rule came up for consideration before this Court in Major
S.S. Khanna v. Brig. F.J. Dillon [(1964) 4 SCR 409 : AIR 1964
SC 497] and it was held as under: (SCR p. 421)
“xxx xxx”
G
Though there has been a slight amendment in the language of
Order 14 Rule 2 CPC by the amending Act, 1976 but the principle
enunciated in the above quoted decision still holds good and there

8
AIR 1991 J&K 1
H 9
(2006) 5 SCC 638
SATHYANATH & ANR. v. SAROJAMANI 59
[HEMANT GUPTA, J.]

can be no departure from the principle that the Code confers no A
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.”
16. This Court in Ramesh B. Desai held that the principles B
enunciated in Major S. S. Khanna still hold good and 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 depends
upon the question of fact, it cannot be tried as a preliminary issue. The
said finding arises from the provision of Order XIV Rule 2 clause (a)
and (b). After the amendment, discretion has been given to the Court by C
the expression ‘may’ used in sub-rule (2) to try the issue relating to the
jurisdiction of the Court i.e. territorial and pecuniary jurisdiction, or a bar
to the suit created by any law for the time being in force i.e., the bar to
file a suit before the Civil Court such as under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest D
Act, 2002 and numerous other laws particularly relating to land reforms.
Hence, if Order XIV Rule 2 is read along with Order XII Rule 5, the
Court is expected to decide all the issues together unless the bar of
jurisdiction of the Court or bar to the suit in terms of sub-rule (2) clause
(a) and (b) arises. The intention to substitute Rule 2 is the speedy disposal
of the lis on a question which oust either the jurisdiction of the Court or E
bars the plaintiff to sue before the Civil Court.
17. We may state that the First Schedule appended to the Code
contains the procedure to be applied in respect of the matters coming
for adjudication before the Civil Court. Such procedure is handmaid of
justice as laid down by the Constitution Bench judgment of this Court F
reported as Sardar Amarjit Singh Kalra (Dead) by Lrs. v. Pramod
Gupta (Smt) (Dead) by Lrs. & Anr.10 wherein it was observed as
under:
“26. Laws of procedure are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not to G
foreclose even an adjudication on merits of substantial rights of
citizen under personal, property and other laws. Procedure has
always been viewed as the handmaid of justice and not meant to

10
(2003) 3 SCC 272 H
60 SUPREME COURT REPORTS [2022] 4 S.C.R.

A hamper the cause of justice or sanctify miscarriage of
justice……..”
18. A three Judge Bench in a subsequent judgment reported as
Kailash v. Nanhku & Ors.11 held that all rules of procedure are handmaid
of justice. The language employed by the draftsman of processual law
B may be liberal or stringent but the object of prescribing procedure is to
advance the cause of justice. The Court held as under:
“28. All the rules of procedure are the handmaid of justice. The
language employed by the draftsman of processual law may be
liberal or stringent, but the fact remains that the object of
C prescribing procedure is to advance the cause of justice. In an
adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation.
Unless compelled by express and specific language of the statute,
the provisions of CPC or any other procedural enactment ought
not to be construed in a manner which would leave the court
D helpless to meet extraordinary situations in the ends of justice.
The observations made by Krishna Iyer, J. in Sushil Kumar
Sen v. State of Bihar [(1975) 1 SCC 774] are pertinent: (SCC p.
777, paras 5-6)
“The mortality of justice at the hands of law troubles a judge’s
E conscience and points an angry interrogation at the law
reformer.
The processual law so dominates in certain systems as to
overpower substantive rights and substantial justice. The humanist
rule that procedure should be the handmaid, not the mistress, of
F legal justice compels consideration of vesting a residuary power
in judges to act ex debito justitiae where the tragic sequel otherwise
would be wholly inequitable. … Justice is the goal of jurisprudence
— processual, as much as substantive.”
29. In State of Punjab v. Shamlal Murari [(1976) 1 SCC 719 : 1976
G SCC (L&S) 118] the Court approved in no unmistakable terms
the approach of moderating into wholesome directions what is
regarded as mandatory on the principle that: (SCC p. 720)

11
H (2005) 4 SCC 480
SATHYANATH & ANR. v. SAROJAMANI 61
[HEMANT GUPTA, J.]

“Processual law is not to be a tyrant but a servant, not an A
obstruction but an aid to justice. Procedural prescriptions are
the handmaid and not the mistress, a lubricant, not a resistant
in the administration of justice.”
In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] the
Court reiterated the need for interpreting a part of the adjective B
law dealing with procedure alone in such a manner as to subserve
and advance the cause of justice rather than to defeat it as all the
laws of procedure are based on this principle.”
19. This Court in Sugandhi v. P. Rajkumar12 held that if the
procedural violation does not seriously cause prejudice to the adversary C
party, Courts must lean towards doing substantial justice rather than
relying upon procedural and technical violations. It is not to be forgotten
that litigation is nothing but a journey towards truth which is the foundation
of justice and the Court is required to take appropriate steps to thrash
out the underlying truth in every dispute. It was held as under:
D
“9. It is often said that procedure is the handmaid of justice.
Procedural and technical hurdles shall not be allowed to come in
the way of the court while doing substantial justice. If the
procedural violation does not seriously cause prejudice to the
adversary party, courts must lean towards doing substantial justice
rather than relying upon procedural and technical violation. We E
should not forget the fact that litigation is nothing but a journey
towards truth which is the foundation of justice and the court is
required to take appropriate steps to thrash out the underlying
truth in every dispute. Therefore, the court should take a lenient
view when an application is made for production of the documents F
under sub-rule (3).”
20. The provisions of Order XIV Rule 2 are part of the procedural
law, but the fact remains that such procedural law had been enacted to
ensure expeditious disposal of the lis and in the event of setting aside of
findings on preliminary issue, the possibility of remand can be avoided, G
as was the language prior to the unamended Order XIV Rule 2. If the
issue is a mixed issue of law and fact, or issue of law depends upon the
decision of fact, such issue cannot be tried as a preliminary issue. In
other words, preliminary issues can be those where no evidence is
12
(2020) 10 SCC 706 H
62 SUPREME COURT REPORTS [2022] 4 S.C.R.

A required and on the basis of reading of the plaint or the applicable law, if
the jurisdiction of the Court or the bar to the suit is made out, the Court
may decide such issues with the sole objective for the expeditious
decision. Thus, if the Court lacks jurisdiction or there is a statutory bar,
such issue is required to be decided in the first instance so that the
process of civil court is not abused by the litigants, who may approach
B
the civil court to delay the proceedings on false pretext.
21. In fact, in a judgment reported as A. Shanmugam v. Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai
Sangam & Ors.13, this Court held as under:
C “39. Our courts are usually short of time because of huge pendency
of cases and at times the courts arrive at an erroneous conclusion
because of false pleas, claims, defences and irrelevant facts. A
litigant could deviate from the facts which are liable for all the
conclusions. In the journey of discovering the truth, at times, this
Court, at a later stage, but once discovered, it is the duty of the
D court to take appropriate remedial and preventive steps so that no
one should derive benefits or advantages by abusing the process
of law. The court must effectively discourage fraudulent and
dishonest litigants.”
22. The different judgments of the High Court referred to above
E are in consonance with the principles laid down by this Court in Ramesh
B. Desai that not all issues of law can be decided as preliminary issues.
Only those issues of law can be decided as preliminary issues which fell
within the ambit of clause (a) relating to the “jurisdiction of the Court”
and (b) which deal with the “bar to the suit created by any law for the
F time being in force.” The reason to substitute Rule 2 is to avoid piecemeal
trial, protracted litigation and possibility of remand of the case, where
the appellate court differs with the decision of the trial court on the
preliminary issues upon which the trial court had decided.
23. On the other hand, learned counsel for the respondent relies
G upon the judgments of this Court reported as Abdul Rahman v. Prasony
Bai & Anr.14, Srihari Hanumandas Totala v. Hemant Vithal Kamat
& Ors.15 and Jamia Masjid v. K.V. Rudrappa (Since Dead) by LRs.

13
(2012) 6 SCC 430
14
(2003) 1 SCC 488
H 15
(2021) 9 SCC 99
SATHYANATH & ANR. v. SAROJAMANI 63
[HEMANT GUPTA, J.]

& Ors.16 to contend that on a question of res judicata, the preliminary A
issue needs to be framed.
24. In Abdul Rahman, this Court was examining a suit filed by
the appellant in the year 1999 to declare that the defendant is not the
daughter of Mangal Singh and that the appellant is in adverse possession
even during the life time of Mangal Singh. An additional issue was framed B
regarding the jurisdiction of the civil suit to try the said suit. The High
Court in proceedings passed an order on 29.11.2001 dismissing the suit
on the preliminary issue whether the dispute to the present civil suit has
already been decided and adjudicated by the Court and is barred by the
principles of res judicata. An intra court appeal was filed which was
dismissed on 4.12.2001 and thereafter, the matter travelled to this Court. C
In these circumstances, this Court held as under:
“21. For the purpose of disposal of the suit on the admitted facts,
particularly when the suit can be disposed of on preliminary issues,
no particular procedure was required to be followed by the High
Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, D
a civil court can dispose of a suit on preliminary issues. It is neither
in doubt nor in dispute that the issues of res judicata and/or
constructive res judicata as also the maintainability of the suit can
be adjudicated upon as preliminary issues. Such issues, in fact,
when facts are admitted, ordinarily should be decided as preliminary E
issues.”
25. A perusal of the above judgment of this Court shows that it
was an admitted fact that issue of res judicata and of constructive res
judicata can be adjudicated as preliminary issue. Since it was an admitted
fact, it cannot be said that principle of law has been enunciated that a F
plea of res judicata can be decided as a preliminary issue.
26. In Srihari Hanumandas Totala, the property was mortgaged
in favour of Karnataka State Finance Corporation17. The Corporation
auctioned the property as the loan was not repaid. The legal heirs of the
borrower filed a suit in OS No. 138 of 2008 challenging the sale deed G
dated 8.8.2006 executed by the Corporation and partition of the suit
property. A separate OS No. 103 of 2007 was filed by the purchaser
from the Corporation. Such suit of the purchaser was decreed on
16
2021 SCC OnLine SC 792
17
For short, the ‘Corporation’ H
64 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 26.2.2009. The decree in the said suit was affirmed by the High Court
on 11.8.2007. The purchaser from the Corporation filed an application
under Order VII Rule 11 for rejection of the plaint of OS No. 138 of
2008. Such application was dismissed by the learned trial court. The
order was affirmed in revision by the High Court holding that the ground
of res judicata could not be decided merely by looking averments in the
B
plaint. It is the said order which became subject matter of challenge
before this Court. This Court found that the plea of res judicata requires
consideration of the pleadings, issues and decision in the previous suit
and such a plea would be beyond the scope of Order VII Rule 11.
However, in the operative paragraph, it was observed that the trial court
C shall consider whether a preliminary issue should be framed under Order
XIV, and if so, to decide it within a period of three months of raising the
preliminary issue. The operative part of the order reads thus:
“28. For the above reasons, we hold that the plaint was not liable
to be rejected under Order 7 Rule 11(d) and affirm the findings of
D the trial court and the High Court. We clarify however, that we
have expressed no opinion on whether the subsequent suit is barred
by the principles of res judicata. We grant liberty to the appellant,
who claims as an assignee of the bona fide purchaser of the suit
property in an auction conducted by KSFC, to raise an issue of
the maintainability of the suit before the Additional Civil Judge,
E Belgaum in OS No. 138 of 2008. The Additional Civil Judge,
Belgaum shall consider whether a preliminary issue should be
framed under Order 14, and if so, decide it within a period of 3
months of raising the preliminary issue. In any event, the suit shall
be finally adjudicated upon within the outer limit of 31-3-2022.”
F 27. This Court was thus examining the scope of Order VII Rule
11 of the Code, whereas such is not the issue in the present appeal. In
fact, the defendant has filed an application for framing of preliminary
issues. The direction of the High Court is on such application. Therefore,
such application needs to be considered in the light of the provisions of
G Order XIV Rule 2 of the Code.
28. In Jamia Masjid, the judgment and decree in a second appeal
holding that the suit is barred by the principle of res judicata was the
subject matter of challenge before this Court. The learned trial court
decided Issue Nos. 5 and 6 related to res judicata and limitation as
H preliminary issue. It was held that suit was not barred by limitation but
SATHYANATH & ANR. v. SAROJAMANI 65
[HEMANT GUPTA, J.]

barred by res judicata. In appeal, such finding was affirmed. However, A
in second appeal, the matter was remanded to the trial court for disposal
of the suit in accordance with law holding that the suit is not barred by
res judicata. In appeal against such judgment and decree, appeal was
remanded to the High Court. The High Court after remand held that the
judgment in a representative suit under Section 92 of the Code binds the
B
parties to the suit and would thus operate as res judicata.
29. In appeal before this Court, it was considered whether res
judicata raises a mixed question of law and facts. The Court held as
under:
“26. The court while undertaking an analysis of the applicability C
of the plea of res judicata determines first, if the requirements
of section 11 CPC are fulfilled; and if this is answered in the
affirmative, it will have to be determined if there has been any
material alteration in law or facts since the first suit was decreed
as a result of which the principle of res judicata would be
inapplicable. We are unable to accept the submission of the D
appellants that res judicata can never be decided as a preliminary
issue. In certain cases, particularly when a mixed question of law
or fact is raised, the issue should await a full-fledged trial after
evidence is adduced. In the present case, a determination of the
components of res judicata turns on the pleadings and judgments E
in the earlier suits which have been brought on the record. The
issue has been argued on that basis before the Trial court and the
first appellate court; followed by two rounds of proceedings before
the High Court (the second following upon an order of remand by
this court on the ground that all parties were not heard). All the
documentary material necessary to decide the issue is before the F
court and arguments have been addressed by the contesting sides
fully on that basis.
xx xx xx
62. In view of the discussion above, we summarise our findings G
below:
(i) Issues that arise in a subsequent suit may either be questions
of fact or of law or mixed questions of law and fact. An alteration
in the circumstances after the decision in the first suit, will require
a trial for the determination of the plea of res judicata if there
H
66 SUPREME COURT REPORTS [2022] 4 S.C.R.

A arises a new fact which has to be proved. However, the plea
of res judicata may in an appropriate case be determined as a
preliminary issue when neither a disputed question of fact nor a
mixed question of law or fact has to be adjudicated for resolving
it;”
B 30. A perusal of the said judgment would show that only issue
Nos. 5 and 6 were decided relating to res judicata and limitation as
preliminary issues by judgment dated 3.2.2006. This Court set aside the
finding on the preliminary issue by judgment dated 23.9.2021 i.e., almost
more than 15 years later when the matter was remanded back to the
trial court. The absence of the decision on all issues have necessitated
C the matter to be remanded back, defeating the object of expeditious
disposal of lis between the parties. The conclusion in Para 62(i) is that
the plea of res judicata in appropriate cases may be determined as
preliminary issue when it is neither a disputed question of fact nor a
mixed question of law and fact. Such finding is what this Court held in
D Ramesh B. Desai.
31. We find that the order of the High Court to direct the learned
trial court to frame preliminary issue on the issue of res judicata is not
desirable to ensure speedy disposal of the lis between parties. Order
XIV Rule 2 of the Code had salutary object in mind that mandates the
E Court to pronounce judgments on all issues subject to the provisions of
sub-Rule (2). However, in case where the issues of both law and fact
arise in the same suit and the Court is of the opinion that the case or any
part thereof may be disposed of on an issue of law only, it may try that
suit first, if it relates to jurisdiction of the Court or a bar to the suit
created by any law for the time being in force. It is only in those
F circumstances that the findings on other issues can be deferred. It is not
disputed that res judicata is a mixed question of law and fact depending
upon the pleadings of the parties, the parties to the suit etc. It is not a
plea in law alone or which bars the jurisdiction of the Court or is a
statutory bar under clause (b) of sub-Rule (2).
G 32. The objective of the provisions of Order XLI Rules 24 and 25
is that if evidence is recorded by the learned Trial Court on all the issues,
it would facilitate the first Appellate Court to decide the questions of
fact even by reformulating the issues. It is only when the first Appellate
Court finds that there is no evidence led by the parties, the first Appellate
H Court can call upon the parties to lead evidence on such additional issues,
SATHYANATH & ANR. v. SAROJAMANI 67
[HEMANT GUPTA, J.]

either before the Appellate Court or before the Trial Court. All such A
provisions of law and the amendments are to ensure one objective i.e.,
early finality to the lis between the parties.
33. Keeping in view the object of substitution of sub-Rule (2) to
avoid the possibility of remanding back the matter after the decision on
the preliminary issues, it is mandated for the trial court under Order XIV B
Rule 2 and Order XX Rule 5, and for the first appellate court in terms of
Order XLI Rules 24 and 25 to record findings on all the issues.
34. Therefore, the order of the High Court remanding the matter
to the learned trial court to frame preliminary issues runs counter to the
mandate of Order XIV Rule 2 of the Code and thus, not sustainable in C
law. The learned trial court shall record findings on all the issues so that
the first appellate court has the advantage of the findings so recorded
and to obliviate the possibility of remand if the suit is decided only on the
preliminary issue.
35. Consequently, the appeal is allowed. The order passed by the D
High Court is hereby set aside.

Nidhi Jain Appeal allowed.
(Assisted by : Tamana, LCRA)

E

F

G

H