सुप्रीम कोर्ट ने स्पष्ट किया: मुकदमा शुरू होने के बाद किसी भी मुद्दे को प्रारम्भिक रूप से नहीं सुना जा सकता

Once Trial On All Issues Has Started, One Issue Cannot Be Tried As Preliminary: : Supreme Court Explains Order XIV Rule 2(2) CPC

Saima Anjum

21 Sept 2026 6:24 PM IST

A bench of Justice KV Viswanathan and Justice Arun Palli set aside the orders of the trial court, the first appellate court and the Kerala High Court. The trial court had dismissed a suit as time-barred on a preliminary issue, after the plaintiff had closed his evidence and the defendants had begun theirs. The bench restored the suit and directed that the trial resume from where it was interrupted.

Background

The plaintiff sought a declaration that a sale deed was void, a declaration of title, and recovery of possession with mesne profits in 2013. Plaintiff asserted that he executed a General Power of Attorney (GPA) in favour of a defendant (Defendant No 1/D1) in 2005, to manage the suit land. The GPA did not authorise D1 to settle the terms of sale or create a charge on the property. Later, the plaintiff revoked the GPA in 2009. D1 replied that the land had already been sold to another person (Defendant No 2/D2/petitioner).

Before the trial court, both the defendants denied any fraud and pleaded that the suit was barred by limitation. However, the trial court framed the issues in 2015, of which the question of limitation was framed as Issue No 5. The suit subsequently went for trial. Later in 2018, D2 (petitioner) sought to try limitation as a preliminary issue. The trial court allowed the application and dismissed the suit applying the three-year period under Article 59 of the Limitation Act, 1963, counting it from 2009.

The first appellate court affirmed the trial court's order but modified it into a rejection of the plaint under Order VII Rule 11(d) CPC, since no decree was drawn up. Subsequently, the plaintiff filed a second appeal before the Kerala High Court, which held that limitation was a mixed question of fact and law that could not be decided as a preliminary issue. It also held that since the plaintiff claimed the sale deed was void, Article 65, which provides for a twelve-year limitation period for recovery of possession, applied and the suit was within time. It remitted the matter back to the trial court for fresh adjudication on merits.

Aggrieved by the High Court's finding, the petitioner (D2) filed SLP before the Supreme Court.

Before the Supreme Court, Senior Advocate V Chitambaresh argued for the petitioner that the execution of the GPA was not disputed. Relying on Rajpal Singh v Saroj and Rajeev Gupta v Prashant Garg, it was contended that the preliminary relief sought was cancellation of the sale deed, so Article 59 applied and the suit was barred as it was filed more than three years after the plaintiff's knowledge.

Per contra, Senior Advocate V Giri argued for respondents (plaintiff's legal representatives) disputing the extent of the authority under the GPA. It was also argued that the plaint did not treat the sale deed as a valid document needing cancellation, and the plaintiff could ignore it and seek possession under Article 65. Relying on Sopanrao v Syed Mehmood, it was also argued that declaratory relief does not by itself exclude Article 65.

Supreme Court's view

The judgment authored by Justice Palli traced Order XIV Rule 2 to the 1976 amendment, before which a court that found a case could be disposed of on issues of law shall try those issues first. The Law Commission's 54th Report recommended a change to avoid the delay caused when a decision on a preliminary issue is reversed on appeal and the case goes back for trial on the other issues.

The bench observed that Parliament “altered the ordinary rule without eliminating the power of preliminary adjudication altogether. The pre–amendment preference for determining legal issues first was replaced by a general requirement that all issues should be adjudicated, while an exception was deliberately retained for two classes of legal issues: those concerning the jurisdiction of the Court, and those concerning a bar to the suit created by law. At the same time, the earlier command 'shall try those issues first' gave way to the discretionary expression 'may try that issue first'. The concern underlying the amendment was, therefore, avoidance of unnecessary piecemeal trials and remands; the legislative choice was to address that concern by narrowing, and making discretionary (rather than abolishing) the power of prior determination.”

Relying on Ramesh B Desai v Bipin Vadilal Mehta, Major SS Khanna v Brig FJ Dhillon, Nusli Neville Wadia v Ivory Properties, and Sukhbiri Devi v Union of India, it held that a mixed question of law and fact cannot be decided as a preliminary issue, but that a label attached to a subject does not decide the matter.

“Limitation may, in one case, be a pure question of law, and, in another, a mixed question; the same may be true of an objection concerning jurisdiction. What matters is whether adjudication of disputed facts is necessary before the legal issue can be answered,” it observed.

Further, the Court examined at what stage the power under Rule 2(2) can be exercised. It stated that the power to “try that issue first” is separate from the further discretion to postpone settling the remaining issues, and the latter is expressly optional. It, thus, observed that “the Code thus does not employ 'frame', 'try', and 'determine' as synonyms. They describe related, but distinct steps in the process of adjudication.”

Relying on its recent decision in Manjula v DA Srinivas, which contemplated the remaining issues framed under Order XIV Rule 1 being left to be decided later. It also read Rule 2(2) together with Order XX Rule 5, under which a court must give findings on each issue unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

The bench said that the scheme operates in at least four procedural settings. One, when the court frames only the qualifying issue of law, postpone settlement of the remaining issues, and try that issue first. Two, the court frames all the issues, but direct, contemporaneously, that a qualifying preliminary issue be tried first. Three, the court frames all issues and places the suit on the ordinary course for evidence, but, before the Court has actually embarked upon trial and evidentiary adjudication of the issues generally, a party may invoke Rule 2(2); if no such request had previously been made or adjudicated, the mere fixation of a date for evidence does not, by itself, amount to an irrevocable judicial election against exercise of the power. Four, the Court has already embarked upon trial of the issues generally. At that stage, the power under Rule 2(2) is no longer capable of being exercised.

The judgment stated :

The statutory scheme may consequently operate in, at least, four procedural settings. The Court may, first, frame only the qualifying issue of law, postpone settlement of the remaining issues, and try that issue first. Secondly, it may frame all the issues, but direct, contemporaneously, that a qualifying preliminary issue be tried first, leaving the other framed issues untried. Thirdly, it may have framed all issues and placed the suit on the ordinary course for evidence, but, before the Court has actually embarked upon trial and evidentiary adjudication of the issues generally, a party may invoke Rule 2(2); if no such request had previously been made or adjudicated, the mere fixation of a date for evidence does not, by itself, amount to an irrevocable judicial election against exercise of the power. Fourthly, the Court may already have embarked upon trial of the issues generally. At that stage, the power under Rule 2(2) is no longer capable of being exercised.

Approves HP HC decision partly

The bench also examined the Himachal Pradesh High Court's decision in Prithvi Raj Jhingta v Gopal Singh, and approved it insofar as it holds that once issues have been taken up for trial together, the court cannot sever one for prior adjudication. However, it declined to approve the view that Rule 2(2) is available only where the qualifying issue alone was framed at the outset and settlement of the others was postponed.

It also clarified Sathyanath v Sarojamani wherein the Supreme Court disapproved a direction to frame res judicata as a preliminary issue. It said that issue was a mixed question and did not qualify under Rule 2(2), so the ordinary rule applied.

Summary

Summarising the position, the bench held that an issue may be tried first under Rule 2(2) only if it is an issue of law relating to jurisdiction or a statutory bar and is capable of disposing of the case, or part of it, without adjudication of disputed facts. The power can be exercised when only the qualifying issue has been framed, when all issues are framed but one is designated for prior trial, and, where the question was not previously considered, even after all issues are framed and the suit is listed for evidence, provided the court has not yet started trial of issues generally. Where a qualifying issue is validly tried first and disposes of the suit, “the remaining issues need not be tried merely because they had already been framed.”

"The position may, therefore, be stated in this manner. An issue may be tried first under Order XIV Rule 2(2) only if it is an issue of law relating to jurisdiction or a statutory bar, and is capable of disposing of the case, or a part thereof, without adjudication of disputed facts. The Court's power to 'try that issue first' is distinct from its further discretion to postpone settlement of the remaining issues. The latter is optional, and all issues may, therefore, already stand framed without the power under sub-rule (2) necessarily having been exhausted. The power may be exercised when only the qualifying issue has been framed; when all issues have been framed, but the qualifying issue is designated for prior trial; and, where the question had not previously been considered, even after all issues have been framed and the suit has been listed for evidence, provided the court has not yet embarked upon the trial of the issues generally. Once it has done so, the statutory occasion to direct that one issue be 'tried first' has passed. Where a qualifying issue was validly tried first, and disposes of the suit, the remaining issues need not be tried merely because they had already been framed."

Application to the present case

Applying the aforesaid, the Court noted that all issues (including issue of limitation) were framed in 2015. The plaintiff had concluded his evidence and defendants entered on theirs in 2018. The Court, thus, held that “issue No. 5 was, by then, one among the issues already undergoing trial. Thus, the present case falls squarely within the fourth of the situations adverted to earlier. Hence, the statutory occasion to direct that it be 'tried first' had passed.”

It rejected reliance on Section 151 of CPC stating that the inherent power “cannot be invoked to circumvent the conditions, sequence, or temporal limits which attend the exercise of a power expressly conferred by the Code. Once the suit had reached the stage which it had reached here, Section 151 could not resuscitate a power to 'try' Issue No. 5 'first' when it was already part of a trial in progress.”

The bench found errors at each level. The trial court did not advert to this question at all, going directly from the plaintiff's pleaded date of knowledge to Article 59. The first appellate court did not examine whether the power to direct prior trial remained available. The High Court framed a substantial question on whether limitation could be determined as a preliminary issue under Order XIV Rule 2(2) but did not address the operation of the concerned provisions at all.

In the light of above, the Supreme Court set aside the orders of the trial court, the first appellate court, and the Kerala High Court. It, thus, restored the suit before the Munsiff Court, Kottarakara, and directed the trial court to resume proceedings from the stage immediately before the interruption caused to the ordinary course of trial.

“The trajectory of the present litigation at all forums is a telling illustration of the very mischief which the procedural law was designed to prevent. A suit instituted in 2013, with all issues having been framed as far back as 2015, is being remitted after over a decade for a decision on merits. Thus, in the given circumstances we request the Trial Court to decide the suit within three months from the receipt of the copy of this judgment,” the bench observed.

Case: John Mathew v Santha Paul & Ors.

Citation : 2026 LiveLaw (SC) 964

For Petitioner: Mr. V. Chitambaresh, Sr. Adv.; Mr. Bijo Mathew Joy, AOR; Mrs. C. Vijayakumari, Adv.; Ms. Gifty Marium Joseph, Adv.; Mr. C. Govind Venugopal, Adv.; Mr. Sparsh Srivastava, Adv.; Mr. Aswin Krishnan, Adv.

For Respondent: Mr. V. Giri, Sr. Adv.; Mr. Mohammed Sadique T.A., AOR; Mrs. Anu K Joy, Adv.; Mr. Alim Anvar, Adv.; Mr. Santhosh K, Adv.; Mrs. Devika A.l., Adv.; Mr. Rahul Narang, Adv.; Mr. Harshed Sundar, Adv; .Mr. Nihar Dharmadhikari, Adv.; Ms. Aishwarya Mishra, Adv.

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