JUDGMENT : SANDEEP SHARMA, J. Instant petition filed under Art. 227 of the Constitution of India, lays challenge to order dated 16.5.2023 passed by learned Civil Judge, Court No.5, Shimla, Himachal Pradesh in Civil Suit No. 58 of 2022 titled as Govind Singh Kanwar and others v. Ranjit Singh, whereby learned trial Court, after directing the petitioners/plaintiffs (hereinafter, ‘plaintiffs’) to tender evidence by way of affidavit, acceded to the request of the respondents/defendants (hereinafter, ‘defendants’), to lead evidence qua issue No. 8, prior to leading evidence on other issues. 2. For having a bird’s eye view of the matter, facts, relevant for the adjudication of the case at hand are that the plaintiffs filed a civil suit for declaration under S.34 of the Specific Relief Act, declaring the gift deed No. 198 of 2007, dated 8.2.2007 registered with Sub Registrar (Rural) Shimla, executed by defendant No.1 in favour of defendant No.3 qua 150/3467 share in specific Khasra No. 44, to be not binding upon the right, title or interest of the plaintiffs, for the reason that the gift deed of specific Khasra No. 44 is not legally permissible out of joint holding/Khewat, wherein there are total 17 Khasra numbers and said Khasra No.44 stood allotted to the plaintiffs in a partition got conducted by the plaintiffs and defendants Nos. 1 and 2 through their common mediators. Apart from above, plaintiffs also prayed for permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession of the plaintiffs over the land mentioned in Schedule I of the plaint. 1. Aforesaid suit came to be resisted on behalf of defendants, by way of filing detailed written statement. On the basis of pleadings adduced on record by the parties to the lis, learned trial Court, vide order dated 29.11.2022, framed as many as ten issues, as is evident from copies of zimni orders (Annexure P-2 colly. Learned trial Court permitted both the parties to furnish list of witnesses within fifteen days. Learned trial Court also directed the plaintiffs to file PF and Diet Money within seven days, failing which entire evidence was ordered to be produced on self-responsibility. Again on 20.1.2023 and 29.8.2023, time was granted to the plaintiffs to take steps for summoning plaintiffs’ witnesses. Learned trial Court permitted both the parties to furnish list of witnesses within fifteen days. Learned trial Court also directed the plaintiffs to file PF and Diet Money within seven days, failing which entire evidence was ordered to be produced on self-responsibility. Again on 20.1.2023 and 29.8.2023, time was granted to the plaintiffs to take steps for summoning plaintiffs’ witnesses. On 16.5.2023, learned counsel for the plaintiffs supplied copies of the evidence by way of affidavits of the witnesses to be examined by them, to the defendants and sought time from the learned trial Court for tendering affidavits. However, at that stage, learned counsel for defendants Nos. 1 to 3 submitted before learned trial Court that since issue of jurisdiction as raised by the contesting defendants in their pleadings and qua which issue No.8 stands framed, defendants be permitted to lead evidence qua issue No.8 prior to leading evidence on other issues, as the preliminary issue needs to be decided at the first instance. Learned trial Court below vide aforesaid order allowed the prayer made on behalf of the aforesaid defendants and permitted them to lead evidence on issue No.8 on 23.6.2023. However, on 23.6.2023, matter was adjourned enabling defendants to take steps for adducing defendants’ witnesses qua issue No. 8. In the aforesaid background, plaintiffs have approached this Court, in the instant proceedings, praying therein to set aside order dated 16.5.2023, inasmuch as learned trial Court permitted the defendants to lead evidence at the first instance qua issue No.8, being a preliminary issue. 2. I have heard learned counsel for the parties and perused the material available on record. 3. Precisely, the grouse of the plaintiffs, as has been highlighted in the petition and further canvassed by Mr. R.K. Bawa, learned senior counsel duly assisted by Mr. Ajay Kumar Sharma, Advocate is that once no specific preliminary issue with regard to jurisdiction was framed and vide order dated 29.11.2022, ten issues including issue of jurisdiction was framed and thereafter time was granted to the plaintiffs to lead evidence, there was no occasion, if any, for learned trial Court to permit the defendants to lead evidence qua issue No.8, at the first instance, by postponing the evidence qua other issues. 4. Mr. 4. Mr. Bawa, learned senior counsel, appearing for the plaintiffs, vehemently argued that while framing issues on 29.11.2022, learned trial Court, at no point of time ordered to treat issue No. 8 as a ‘preliminary issue’, as such, after framing of issues, all the issues are/were required to be heard and decided together. He further submitted that after framing of issues, plaintiffs in terms of order dated 29.11.2022, while taking steps for examination of witnesses on behalf of the plaintiffs have already supplied copies of affidavits of witnesses intended to be examined on behalf of the plaintiffs, as a result whereof, entire defence of the plaintiffs has become known to the defendants, yet the learned trial Court ignoring the provisions contained under Order XIV, rule 2 as well as law on the point, permitted the defendants to lead evidence qua issue No.8, at the first instance, which is wholly impermissible. He submitted that issue No. 8 cannot be treated as a ‘preliminary objection, because, same being otherwise mixed question of law and facts, needs to be decided in the totality of evidence led on record by respective parties. He submitted that issue No. 8, has been framed on the basis of pleadings of defendant that learned trial Court has no jurisdiction in the matter in view of bar under S.171 of the Himachal Pradesh Land Revenue Act, but since question of title is involved qua the land in question, aforesaid issue of bar under S.171 of the Act ibid, cannot be merely decided on the basis of pleadings in the plaint, rather, said fact, if any, is required to be proved by leading cogent and convincing evidence. Lastly, Mr. Bawa, learned senior counsel submitted that the learned trial Court has acted contrary to the provisions of law, rules and procedure, because, once vide order dated 29.11.2022, it had permitted the plaintiffs to submit their evidence and pursuant to the aforesaid order plaintiffs had supplied copies of affidavits of witnesses intended to be examined on their behalf, learned trial Court has erred in law, by suddenly allowing the defendants to lead their evidence. He submitted that since learned trial Court has acted in excess of its jurisdiction and de hors the provisions of law, rules and procedure, impugned order deserves to be quashed and set aside. 5. Per contra, Mr. Shrawan Dogra, learned senior counsel duly assisted by Mr. He submitted that since learned trial Court has acted in excess of its jurisdiction and de hors the provisions of law, rules and procedure, impugned order deserves to be quashed and set aside. 5. Per contra, Mr. Shrawan Dogra, learned senior counsel duly assisted by Mr. Manish Sharma, learned senior counsel, appearing for defendants Nos. 1 to 3 supported the impugned order. He submitted that issue No. 8 framed on the basis pleadings adduced on record by the defendants, has been rightly ordered to be decided at the first instance being a ‘preliminary issue’. He submitted that since defendants specifically set up a plea that suit filed by the plaintiffs is barred in terms of S.171 of the Land Revenue Act, learned trial Court strictly in terms of provisions contained under Order XIV, rule 2, rightly permitted the defendants to lead evidence, if any, qua the aforesaid issue. While making this Court peruse the provisions of Order XIV, rule 2 CPC, learned senior counsel submitted that the issue of law, if any, raised after framing of issues, can be ordered to be decided at the first instance, being a ‘preliminary issue’, by postponing settlement and decision qua other issues. He submitted that since specific plea has been set up on behalf of the defendants that the suit filed by the plaintiffs is barred in terms of S.171 of the Land Revenue Act, no illegality can be said to have been committed by learned trial Court, while permitting defendants to lead evidence qua issue No. 8. 6. Both the learned senior counsel placed heavy reliance upon judgment passed by Hon'ble Apex Court in Sathyanath and another v. Sarojamani, (2022) 7 SCC 644 . Mr. Bawa, learned senior counsel, while referring to the aforesaid judgment, vehemently argued that in terms of Order XIV, rule 2 (2) CPC, court is liable to pronounce judgment on all the issues. He submitted that though provisions contained under Order XIV, rule 2 (2) CPC, permits a court to try issues of law, if any, at the first instance, but when such an issue is a mixed question of law and facts, same cannot be decided as a ‘preliminary issue’. He submitted that though provisions contained under Order XIV, rule 2 (2) CPC, permits a court to try issues of law, if any, at the first instance, but when such an issue is a mixed question of law and facts, same cannot be decided as a ‘preliminary issue’. He submitted that in the aforesaid judgment, it has been categorically held that to avoid possibility of remand by the appellate or revisional jurisdiction, trial court is under obligation to decide all issues together, especially when no specific preliminary issue was ever raised with regard to limitation and jurisdiction. 7. While placing reliance upon aforesaid judgment, Mr. Dogra, learned senior counsel attempted to carve out a case that where issues both of law and of fact arise in the same suit, and the Court is of opinion that suit may be disposed of on any issue of law, it can try that issue at first instance, especially when it relates to jurisdiction of court or a bar on jurisdiction of the court created by any law for the time being in force. 8. Mr. Dogra further submitted that in the aforesaid judgment, it has been categorically held that to discourage protracted litigation and to do justice at the earliest, provisions contained under Order XIV, rule 2 (2) CPC, mandate a court to pronounce judgment qua issue of jurisdiction and maintainability, if any, at the first instance. He submitted that the provisions of Order XIV, rule 2 (2) CPC, were enacted to ensure speedy disposal of lis and, in the event of setting aside findings on preliminary issue, possibility of remand can be avoided, as was the language prior to the unamended Order XIV Rule 2. He submitted that, where no evidence is required, on the basis of reading of plaint or applicable law, court can ascertain its jurisdiction or maintainability of suit, it can try such issue as a ‘preliminary issue’ and decide the same at the first instance by postponing settlement or decision qua other issues. Mr. Dogra, learned senior counsel, submitted that since the partition proceedings qua the suit land are already pending adjudication in the competent court of law, present suit is barred under S.171 of the Act ibid. Mr. Dogra, learned senior counsel, submitted that since the partition proceedings qua the suit land are already pending adjudication in the competent court of law, present suit is barred under S.171 of the Act ibid. He submitted that since specific plea has been raised with regard to suit being barred under S.171 of the Act ibid, and such issue can be decided on the basis of pleadings adduced on record by respective parties, no illegality can be said to have been committed by learned trial Court, while treating issue No.8 as a preliminary issue. 9. Before ascertaining correctness of the aforesaid submissions made on behalf of learned counsel for the parties, this court deems it fit to take note of provisions contained under Order XIV, rule 2 (s) CPC. 10. Order XIV, rule 2 CPC before amendment by Act No. 104 of 1976, read as under: “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 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.” 11. Bare reading of unamended rule 2 supra, suggests that 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 can 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 the issues of law are determined/decided. Hon'ble Apex Court, in Major S.S. Khanna v. F.J. Dhillon, AIR 1964 SC 497 , interpreted the aforesaid provision in the manner, as has been noted herein above. Order XIV, rule 2 CPC, after substitution of rule 2 by Act No. 104 of 1976, enforced with effect from 1.4.1977, reads as under: “Order XVI, rule 2, after amendment 2. Court to pronounce judgment on all issues. (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Court to pronounce judgment on all issues. (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (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.” 12. By way of aforesaid amendment, word, “shall” in the unamended provision, came to be replaced by word, “may” in the subsequent provision, as a result thereof, it is now the discretion of the court to decide the issue of law as a ‘preliminary issue’ or to decide it alongwith other issues. Bare reading of aforesaid provision of law clearly reveals that all issues of law cannot be decided as ‘preliminary issues’. Only those issues, which fall within the meaning of clauses (a) and (b) of sub-rule (2) of rule-2 can be decided as ‘preliminary issues’. Once, court arrives at a conclusion that the case or any part thereof can be disposed of on the issues of law only, it is obliged to try those issues first and the other issues can be taken up only thereafter, if necessity survives. On account of replacement of word, ‘Shall” shown in unamended Order XIV, rule 2 with word, “May”, discretion has been given to the court to decide the issue of law as a ‘preliminary issue’ or decide it alongwith other issues. However, bare reading of aforesaid amended provision nowhere suggests that it is obligatory for the court to decide an issue of law, as a ‘preliminary issue’, rather, discretion in that regard lies with the court only. 13. However, bare reading of aforesaid amended provision nowhere suggests that it is obligatory for the court to decide an issue of law, as a ‘preliminary issue’, rather, discretion in that regard lies with the court only. 13. Most importantly, another important change has been brought by amending the provision is that all issues of law cannot be decided as ‘preliminary issues’ rather, those issues of law can be decided as ‘preliminary issues’, which fall within the meaning of clauses (a) and (b) of sub-rule (2) of rule-2 of Order XIV, CPC. Clause (a) deals with “the jurisdiction of the Court”, and clause (b) deals with a bar to the suit created by any law for the time being in-force”. For bringing it under clause (b), plea has been set up by the defendants that the suit is barred under S.171 of the Act ibid. S. 171 of the Himachal Pradesh Land Revenue Act reads as under: “171. For bringing it under clause (b), plea has been set up by the defendants that the suit is barred under S.171 of the Act ibid. S. 171 of the Himachal Pradesh Land Revenue Act reads as under: “171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- Except as otherwise provided by this Act- (1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and in particular- (2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely- (i) any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply; (ii) any claim to compel the performance of any duties imposed by this Act or any other enactment for the time being in force on any Revenue Officer as such; (iii) any claim to the office of kanungo, or village officer, or in respect of any injury caused by exclusion from such office, or to compel the performance of the duties or a division of the emoluments thereof; (iv) any notification directing the making or revision of a record-of-rights; (v) the framing of a record-of-rights or 1 [periodical] record or the preparation, signing or attestation of any of the documents included in such a record; 2 [(v-a) order regarding complete remeasurement of an estate or sub-estate under section 33-A of this Act;] (vi) the correction of any entry in a record-of-rights, 1 [periodical] record or register of mutations; 2 [(vi-a) correction of clerical errors under section 38-A of this Act;] (vii) any notification of the undertaking of the general reassessment of a district or tehsil having been sanctioned by the State Government; (viii) the claim of any person to be liable for an assessment of land-revenue or of any other revenue assessed under this Act; (ix) the amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this Act; (x) the amount of, or the liability of any person to pay, any other revenue to be assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act or any other enactment for the time being in force; (xi) any claim relating to the allowance to be received by a land-owner who has given notice of his refusal to be liable for an assessment, or any claim connected with, or arising out of, any proceeding taken in consequence of the refusal of any person to be liable for an assessment under this Act; (xii) the formation of an estate out of wasteland; 3 [(xii-a) formation of sub-division of an estate or merger of sub-estates or estates etc. under section 34-A of this Act;] (xiii) any claim to hold free of revenue any land, mills, fisheries or natural products of land or water; (xiv) any claim connected with, or arising out of, the collection by the State Government, or the enforcement by the Government of any process for recovery of land revenue or any sum recoverable as an arrear of land revenue; (xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue; (xvi) the amount of, or the liability of any person to pay any fees, fines, costs or other charges imposed under this Act; (xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of proceedings for partition not being a question as to title in any of the property of which partition is sought; (xviii) any question as to the allotment of land on the partition of an estate holding or tenancy, or as to the distribution of land subject by established custom to periodical redistribution or as to the distribution of land revenue on the partition of an estate or holding or on a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy; (xix) any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates subject to river action under sections 108, 109, 110 and 111 respectively of Chapter VIII; (xx) any claim to set aside or disturb a division or appraisement of produce confirmed or varied by a Revenue Officer under this Act; (xxi) any question relating to the preparation of a list of village cesses or the imposition by the State Government of conditions on the collection of such cesses; (xxii) any proceeding under this Act for the commutation of the dues of a superior land- owner; (xxiii) any claim arising out of the enforcement of an agreement to render public service in lieu of paying land-revenue; (xxiv) any claim arising out of the liability of an assignee of land revenue to pay a share of the cost of collecting or reassessing such revenue, or arising out of the liability of an assignee to pay out of assigned land revenue, or of a person who would be liable for land revenue, if it had not been released, compounded for, or redeemed, to pay on the land revenue for which he would, but for such release, composition or redemption, be liable, such a percentage for the remuneration of a village officer as may be prescribed by rules for the time being in force under this Act; or 1 [(xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has vested or is deemed to have vested in him and that he cannot be ejected therefrom under sub-section (1) of section 163; and] 2 [(xxvi) the ejectment of any person under section 163 or the recovery of damages or fine payable under sub-section (1) of that section.]” 14. After having carefully perused the provisions contained under Order XIV, rule 2 after substitution of rule-2 of Act No.104 of 1976, this court is persuaded to agree with Mr. Dogra, learned senior counsel that where issues both, of law and facts, arise in a suit, issue of law only can be tried, at the first instance. However, to take benefit of provisions contained under Order XIV, rule 2, after substitution of rule-2 by Act No. 104 of 1976, issue(s) sought to be decided as “preliminary issue(s)’ must relate to jurisdiction or a bar to the suit created by any law for the time being in-force. However, if provisions contained under Order XIV, rule-2 are read in their entirety, they further provide that though a court can dispose of a suit on preliminary issue, especially when jurisdiction is barred due to bar created by any law, but subject to provisions of sub-rule (2), court shall pronounce the judgment on all issues and, for that purpose, if it thinks fit, it may postpone settlement of other issues, till the time, issue of law is determined in accordance with law. 15. Admittedly, in the case at hand, issue sought to be decided as a ‘preliminary issue’ is an issue with regard to bar to the suit created by any law, for the time being in force. In the instant case, defendants have set up a plea that the suit filed by the plaintiffs is barred in terms of S.171 of the Act ibid but it is also true that no separate or specific issue with regard to suit barred under S.171 of the Act ibid was ever framed as a preliminary issue, rather, learned trial Court, on the basis of pleadings adduced on record by respective parties, framed as many as ten issues, out of which, issue No.8 was framed in the following manner: “8. Whether this court has no jurisdiction to entertain the present suit being barred under Section 171 of HP Land Revenue Act, as alleged? OPD” 16. It is also not in dispute that after framing of issues, learned trial Court, vide order dated 29.11.2022, directed the plaintiffs to file PF and diet money within seven days, failing which the evidence was to be produced on self-responsibility. It is also not in dispute that on 20.1.2023, matter was adjourned enabling plaintiffs to take steps for summoning their witnesses. It is also not in dispute that on 20.1.2023, matter was adjourned enabling plaintiffs to take steps for summoning their witnesses. It is also not in dispute that on 16.5.2023, plaintiffs, in terms of order dated 29.11.2022, supplied to the defendants copies of affidavits of witnesses intended to be examined on behalf of the plaintiffs and prayed time for tendering affidavits in evidence. After supplying to the defendants, copies of affidavits of the witnesses intended to be examined on behalf of the plaintiffs, learned trial Court, while acceding to the prayer made on behalf of the defendants to try issue No.8 as preliminary issue, adjourned the matter to 23.6.2023 with direction to the defendants to lead evidence qua issue No. 8, at the first instance. 17. Precisely, the grouse of the plaintiffs is that once plaintiffs were permitted to lead evidence qua all the issues and before granting time to take steps for summoning plaintiffs’ evidence, no specific/preliminary issue with regard to jurisdiction or maintainability of suit was framed, learned trial Court could not have permitted the defendants to lead evidence ahead of them, qua issue No. 8, especially, when defence of the plaintiffs had come to their knowledge by way of evidence proposed to be tendered in the shape of affidavits. In the aforesaid background, following questions arise for determination in the case at hand: (a) Whether learned trial Court, in terms of provisions contained under Order XIV, rule 2 CPC, after substitution of rule-2, by Act No. 104 of 1976, could treat issue No. 8 as a ‘preliminary issue’ and dispose of the suit, on the basis of same, or was required to decide all the issues together. (b) Whether learned trial Court, after having permitted the plaintiffs to lead evidence qua all the issues framed on 29.11.2022 could decide issue No.8, as a ‘preliminary issue’ and grant time to the defendants to lead evidence qua that issue, at the first instance or not? 18. Both the issues as formulated herein above have been already considered and decided by Full Bench of this Court in Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr. 2006 SCC OnLine HP 25. Subsequent to aforesaid judgment rendered by Full Bench of this Court, recently Hon'ble Apex Court in Sathyanath, supra, has also dealt with provisions contained under Order XIV, rule 2 CPC, in detail. v. Gopal Singh & Anr. 2006 SCC OnLine HP 25. Subsequent to aforesaid judgment rendered by Full Bench of this Court, recently Hon'ble Apex Court in Sathyanath, supra, has also dealt with provisions contained under Order XIV, rule 2 CPC, in detail. Since, Hon'ble Apex Court, while passing judgment in Sathyanath supra, has already taken note of decision rendered by Full Bench of this Court in Prithvi Raj Jhingta supra, as well as other judgments passed by various High courts, this court shall take note of judgment rendered in Sathyanath supra, wherein it has been held as under: “11. A Full Bench of Himachal Pradesh High Court in a judgment reported as Prithvi Raj Jhingta & Anr. v. Gopal Singh & Anr., 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 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 preliminary issues deserved to be reversed, the case per force 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 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. 9. Based upon the aforesaid reasons therefor, and in the light of legislative background of Rule 2 and the legislative intent as well 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 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 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 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.” 12. A Single Bench of Punjab and Haryana High Court in a judgment reported as Hardwari Lal v. Pohkar Mal and Ors., AIR 1978 P&H 230 compared 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 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 had been determined. 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 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 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.” 12. A Single Bench of Patna High Court in a judgment reported as Dhirendranath Chandra v. Apurba Krishna Chandra and Ors. 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 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 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 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 circumstances the Court has only a discretion that it may try an 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 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. 16. This Court in Ramesh B. Desai held that the principles 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 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 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. 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 bars the plaintiff to sue before the Civil Court. 21. 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, 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 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 the civil court to delay the proceedings on false pretext. 23. The different judgments of the High Court referred to above 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. 23. The different judgments of the High Court referred to above 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 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. 33. 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 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 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). 34. 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. 34. 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 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 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 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. 35. 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 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.” 19. If the aforesaid judgment rendered by Hon'ble Apex Court is read in its entirety, it clearly provides 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 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 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 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 20. Otherwise also, plain reading of rule-2 clearly provides that though a court may dispose all preliminary issues but yet it is open to pronounce judgment on all issues. Sub-rule (1) is subject to only one exception provided under rule-2, which provides that if a case or any part thereof, can be disposed of, on an issue of law, it may try that issue, if it relates to jurisdiction of the court or a bar to the suit created by any law, for the time being in force, court must try that issue first. Departure from rule provided under sub-rule (1) of rule 2 may be made only in circumstance mentioned in rule-2 and, in that circumstance, court has the discretion that it may decide issues relating to clauses (a) and (b), as preliminary issue(s), before framing other issues. 21. Though, sub-rule (2) empowers a court to decide the issue of law relating to points in clauses (a) and (b) of sub-rule (2), at first instance, but it certainly does not cast an obligation upon the court to try such issue first in all cases. If court is of the opinion that in a particular case, it would be more expedient to try all issues together, it can decide all issues together, even on the point regarding Clauses (a) and (b) of sub-rule (2). If court is of the opinion that in a particular case, it would be more expedient to try all issues together, it can decide all issues together, even on the point regarding Clauses (a) and (b) of sub-rule (2). Though, 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 bars the plaintiff to sue before the Civil Court, but it is well settled 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 depends upon the question of fact, it cannot be tried as a preliminary issue. 22. Reliance in this regard is placed upon a judgment rendered by Hon'ble Apex Court in Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638 . 23. Next question, which needs determination is whether provisions contained under Order XIV, rule-2 being part of procedural law, can be deviated or are required to be adhere to stringently. Needless to say, First Schedule appended to the code contains the procedure to be applied in matters adjudication before civil court but it is also true that aforesaid prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice, as laid down by a Constitution Bench of Hon'ble Apex Court in Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 , wherein, Hon'ble Apex Court held that laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to 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 hamper the cause of justice or sanctify miscarriage of justice. 24. Repeatedly, it has been held by Constitutional courts that 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 violations. 25. The language used in procedural law may be liberal or stringent but the object of prescribing procedure is to advance the cause of justice. 25. The language used in procedural law may be liberal or stringent but the object of prescribing procedure is to advance the cause of justice. If it is so, deviation can be certainly made from procedural law, but only to advance cause of justice. No doubt, provisions contained under Order XIV, rule 2 being part of procedural law, can also be deviated but if the object of amendment carried out in the year1976 is taken into consideration, very purpose of amendment is to ensure expedient disposal of suit. In the event of setting aside findings on preliminary issues, possibility of remand can be avoided, if despite there being specific finding on preliminary issues, whole case is decided in one go. Salutary object of provisions contained under Order XIV, rule-2 CPC is to mandate a court to pronounce judgment on all issues, subject to provisions of rule-2. 26. However, at the cost of repetition, it may be reiterated that 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 but even in that situation, findings on other issues can be deferred, however, after adjudication of preliminary issue, court is under obligation to render findings on all the other issues and dispose of the suit vide a common judgment. 27. In case, evidence is recorded in by trial court, on all issues, it would certainly help first appellate court to decide questions of facts, even by re-formulating the issue, whereas, if any findings on other issues are returned by trial court and suit is decided on the basis of preliminary issues framed by the court in terms of provisions contained under Order XIV, rule-2 CPC, there is possibility of delay in trial, especially in the event of first appellate court not concurring with the findings returned by trial court, on preliminary issue. In that event, first appellate court may remand the case back to trial court for fresh adjudication. 28. In that event, first appellate court may remand the case back to trial court for fresh adjudication. 28. In nutshell, order impugned in the instant proceedings is not sustainable in the eye of law, in view of aforesaid law taken into consideration, for the following reasons. 29. Once, learned trial Court, on the basis of pleadings adduced on record by respective parties had framed as many as ten issues including the issue of suit being barred in terms of S.171 of the Act ibid and thereafter time was granted to the plaintiffs to lead evidence qua all the issues coupled with the fact that pursuant to orders passed by learned trial Court, plaintiffs had supplied copies of affidavits, proposed to be tendered in evidence to the opposite party, there was no occasion for the court to take up issue No.8 for decision, at the first instance, being a preliminary issue. Except in situations, procedure warranted under sub-rule 2, where a court, in fact, only frames an issue of law, at first instance and postpones settlement of issues under sub-rule-1, it was not open for the court to take up issue No. 8, as a preliminary issue for decision, because, sub-rule does not permit a court to deviate from principle of severability and to dispose of the suit only on preliminary issue, rather, same 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 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. 30. Even otherwise, bare reading of rule-2, though suggests that the case may be disposed of on preliminary issue but yet it is open for the court to pronounce judgment on all the issues. Ordinarily, the rule as provided under Order 14, sub-rule (2), which though empowers the court to dispose of a suit and on issue of law, but only if it relates to jurisdiction of court or a bar created by any law for the time being in force. 31. Ordinarily, the rule as provided under Order 14, sub-rule (2), which though empowers the court to dispose of a suit and on issue of law, but only if it relates to jurisdiction of court or a bar created by any law for the time being in force. 31. It is well settled that if issue is a mixed issue of law and facts, it can not be tried as a preliminary issue, because 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. 32. In the instant case, though on the basis of pleadings adduced on record by the defendants, trial court framed issue with regard to suit being barred in terms of provisions contained under S.171 of the Act ibid, but if the plaint is read in its entirety, it clearly reveals that the same has been filed for declaration that the gift deed executed by defendant No.1, thereby gifting suit property, as detailed in earlier part of the judgment in favour of defendant No.3, is not binding on right, title and interest of the plaintiffs, for the reason that gift out of suit land is not legally permissible, in a joint Khata, as the same stands allotted to the plaintiffs alongwith other land, in a partition conducted on a part of suit land through their common mediators, meaning thereby, there is a question of title. If it is so, same cannot be certainly decided by revenue court in terms of provisions contained under Himachal Pradesh Land Revenue Act, rather the same is only triable by a civil court. 33. Leaving everything aside, this court finds that besides declaration, as taken note of herein above, plaintiffs have also filed suit for permanent prohibitory injunction, restraining the defendants from interfering in the peaceful possession of the plaintiffs over the suit land. 33. Leaving everything aside, this court finds that besides declaration, as taken note of herein above, plaintiffs have also filed suit for permanent prohibitory injunction, restraining the defendants from interfering in the peaceful possession of the plaintiffs over the suit land. Since the plaintiffs were allegedly given possession of suit land and same is being interfered with, they, apart from seeking declaration, have also sought permanent prohibitory and mandatory injunction, which otherwise cannot be disposed of merely on the basis of findings returned qua issue No. 8 i.e. suit being barred in terms of provisions contained under S.171 of the Act ibid. The question, whether the suit land was allotted to the plaintiffs alongwith other land, in partition got conducted by parties to the suit through their common mediators, needs to be decided in the totality of evidence to be led on record by respective parties. 34. Since, the plaintiffs have raised specific question with regard to title of suit land allegedly received by them, in partition proceedings got conducted by the parties through their common mediators, which fact is yet to be proved in accordance with law, issue No. 8 cannot be otherwise decided as a preliminary issue, being a mixed question of law and facts. 35. Once the learned trial Court, after having framed issues on 29.11.2022, had permitted the plaintiffs to lead evidence and plaintiffs had also supplied the copies of evidence by way of affidavits of the witnesses proposed to be examined by them, coupled with the fact that learned trial Court had neither framed nor perceived any preliminary issue at the first instance, rather framed all the issues in one go, order passed by learned trial Court on 16.5.2023, thereby permitting the defendants to lead evidence only qua issue No.8, at the first instance, is not tenable in the eye of law, being wholly unjustified and against the settled provisions of law. 36. Consequently, in view of detailed discussion made herein above as well as law taken into consideration, this court finds sufficient reason to interfere with the impugned order, being contrary to facts as well as law on the point. Petition succeeds and is accordingly allowed. 36. Consequently, in view of detailed discussion made herein above as well as law taken into consideration, this court finds sufficient reason to interfere with the impugned order, being contrary to facts as well as law on the point. Petition succeeds and is accordingly allowed. Impugned orders dated 16.5.2023 and 23.6.2023 passed by learned Civil Judge, Court No.5, Shimla, Himachal Pradesh in Civil Suit No. 58/2022 titled as Govind Singh Kanwar and others v. Ranjeet Singh and others, are quashed and set aside to the extent, defendants have been permitted to lead evidence qua issue No. 8. Trial court is directed to decide all the issues together, with first opportunity to the plaintiffs to lead evidence on the issues otherwise required to be proved by them. 37. The petition stands disposed of in the afore terms, alongwith all pending applications. Interim directions, if any, stand vacated.