27. 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.

28. The reason for the last proposition is inherent in the language of the provision itself. What the Court is empowered to do is to ‘try that issue first’, not merely to decide, or pronounce judgment upon, that issue first. ‘First’ is relational: it describes the position of the trial of the selected issue in relation to the trial of the others. Once the issues have entered a common trial, that relation can no longer be brought about. It is no longer possible, either temporally or conceptually, for one of them thereafter to be tried first. A Court may, of course consider, or decide, one issue before another while composing its judgment, but that is not the power conferred by sub-rule (2). The provision authorises a prospective ordering of trial; it does not authorise a retrospective reordering of a trial already underway. The relevant dividing line is, therefore, not whether all issues have been framed, but whether trial of the issues generally has been undertaken. Framing all issues does not exhaust the discretion under Order XIV Rule 2(2); embarking upon their trial does.

47. The present case illustrates the distinction at the heart of Order XIV Rule 2. The framing of all issues does not, by itself, prevent the Court from directing prior trial of a qualifying issue under sub-rule (2). But once the Court has embarked upon the trial of the issues generally, that power can no longer be invoked to reorder a trial already underway. Here, the Plaintiff had completed his evidence, and the Defendants had entered upon theirs. Issue No. 5 was, therefore, not an issue awaiting a decision whether it should be ‘tried first’; it was already part of a composite trial in progress. Order XIV Rule 2(2) could not be employed at that stage to convert what was already being tried together into a preliminary adjudication of one issue alone.