Order XIV Rule 2 CPC, makes it amply clear that where an issue of law arises, that issue must be tried first. But this provision also specifies a condition that by deciding the said issue of law, the case or any part......................

Case Laws November 10, 2024

Order XIV Rule 2 CPC, makes it amply clear that where an issue of law arises, that issue must be tried first. But this provision also specifies a condition that by deciding the said issue of law, the case or any part thereof may be disposed of. This conditional principle of application has been elaborated through numerous judgments of the Supreme Court of Pakistan wherein, it has been held that the provision of Order XIV Rule 2 CPC is mandatory though before trying the issue of law as a preliminary issue, the court has to be convinced that by doing so, fate of whole case can be decided. Issues of law which go to the root of the whole case and capable to be decided without evidence, the court should decide that issue first. It has further been held that if issues are not framed but allegations are made in the plaint and they are rebutted in the written statement, it is open to the court to allow the parties to lead evidence on such point and to give decision on it without framing any issue. The interpretation of the provision of Order XIV Rule 2 CPC has put a clear condition, thereby leaving it to the discretion of the trial court to frame and decide the legal issue first or together with the issues pertaining to factual controversy. It has further been settled that it is open to the court to allow parties to lead evidence on legal issues without having it formally framed or whether pressed or not by the parties.

The fourth ground for rejection of plaint is ‘barred by law’. The ‘law’ means written law or statute law and is used in generic sense. Law means – a formal pronouncement of the will of a competent law giver. Law includes- constitution, statutes, judicial principles, rules, by-laws etc., which squarely falls within the ambit of clause (d) of Rule 11, Order VII CPC. Limitation is also of the ground which may bar filing of suit after lapse of the provided time. There is no express direction of law to frame a specific issue in respect of limitation, provided an issue in respect of Order VII Rule 11 is framed since it not only covers barring of the suit by any law under clause (d) rather it covers clauses (a),(b) and (c) Order VII Rule 11as well.

There is no cavil to the proposition that the question of maintainability is a mixed question of law and fact. The question of maintainability can therefore only be decided after inviting evidence of parties to the suit. So far as the question that the issue of maintainability under Order VII Rule 11 CPC can be dealt with in general way, the answer of which has already been evaluated in the moot point No.1 and 2 i.e. “it is open to the court to allow parties to lead evidence on legal issues without having it formally framed or whether pressed or not by the parties’ and ‘there is no express direction of law to frame a specific issue in respect of limitation, provided an issue in respect of Order VII Rule 11 is framed since it not only covers barring of the suit by any law under clause (d) rather it covers clauses (a),(b) and (c) Order VII Rule 11 as well.”