Question

Where the right to the discovery or the inspection sought depends on the determination of any issue in the suit, the court may try that issue as a ---------- before deciding upon the right to discovery or inspection

• A. Special issue
• B. Preliminary issue
• C. Res judicata
• D. Res sub judice

Hint:

A preliminary issue is an issue that, if decided in one party's favour, may dispose of the entire suit or a significant part of it, making it unnecessary to try the other issues. Courts can decide issues of law or jurisdiction as preliminary issues to save time and expense.

Answer 1

The Correct Option is B

Step 1: Understanding the Concept:
The question deals with a procedural aspect of discovery and inspection in a civil suit. It refers to a situation where the right of a party to see certain documents or get certain information from the other party first depends on the court's decision on a particular issue in the suit.
Step 2: Key Formula or Approach:
This procedure is governed by Order XI, Rule 20 of the Code of Civil Procedure, 1908.
Order XI, Rule 20. Premature discovery.— "Where the Court is of opinion that any right to discovery or inspection sought depends on the determination of any issue or question in dispute in the suit... the Court may order that such issue or question be determined first, and reserve the question as to the discovery or inspection."
The issue that is decided first before other issues to determine the course of the suit is known as a preliminary issue. (See also Order XIV, Rule 2).
Step 3: Detailed Explanation:
For example, in a suit for accounts, the defendant might deny that there is any liability to account at all. Here, the plaintiff's right to inspect the account books (inspection) depends on the determination of the issue of whether the defendant is liable to account. The court can decide to try this issue of liability first as a preliminary issue. If the court finds the defendant is not liable, the suit is dismissed, and the question of inspecting the account books does not arise.
- \textit{Res judicata} and \textit{Res sub judice} are principles that bar the trial of a suit itself, not just a procedural step within it.
Step 4: Final Answer:
The court may try that issue as a Preliminary issue.

Answer 2

The question asks what a court calls the issue it decides first when the right to discovery or inspection depends on that issue being resolved. Let's examine each option.

1. Special issue: Special issue is not a term used or defined anywhere in the Code of Civil Procedure for this purpose; it does not correspond to any recognised procedural stage under Order XI or Order XIV.
2. Preliminary issue: Order XIV, Rule 2 CPC empowers a court to try issues relating to jurisdiction or a bar to the suit as preliminary issues before other issues, and Order XI, Rule 20 specifically allows the court to determine such a threshold issue before ruling on discovery or inspection. This is exactly the mechanism described.
3. Res judicata: Res judicata under Section 11 CPC bars a court from trying a matter already conclusively decided between the same parties in an earlier suit; it does not describe an issue tried first within the same pending suit.
4. Res sub judice: Res sub judice under Section 10 CPC bars a court from proceeding with a suit when the same matter is already pending before another competent court; again, this concerns two separate proceedings, not an issue tried ahead of others within one suit.

Only preliminary issue describes an issue tried in advance within the same suit to decide whether discovery or inspection is even necessary.

Therefore, the correct answer is Preliminary issue.