Rangappa vs Obulamma and Others

R. Ramanujam, J.—Aggrieved by the order of the Junior Civil Judge, Madakasira, deciding to take up the issue relating to jurisdiction of the Court in O.S. No.112 of 1988 as a preliminary issue, the plaintiff therein filed the present revision petition.

The petitioner-plaintiff filed the said suit against the respondent-defendants for permanent injunction restraining them from interfering with his possession of the suit schedule land. That suit was instituted in the year 1988. For some reason or the other, the trial Court could not commence the trial in that suit. It appears that the defendants have amended the written statement in August, 2000 by taking a plea that the Civil Court has no jurisdiction to entertain the said suit. Immediately thereafter, they filed I.A. No.455 of 2000 under Order XIV, Rule 2 CPC requesting the trial Court to take up the issue - "whether this Court has jurisdiction to entertain the suit?" - as a preliminary issue. The learned trial Judge has allowed the said I.A., and decided to settle that issue as a preliminary issue. It is the said order that is now challenged in this revision petition.

Order XIV, Rule 2 CPC reads thus:

"Court to pronounce judgment on all issues:-

(1) Notwithstanding that a case may be disposed of on a 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".

A close reading of sub-rule (2) clearly indicates that the Court can take up a legal issue relating to the jurisdiction of the Court or a statutory bar to the suit as a preliminary issue.

The question then arises for consideration is:

Whether it is obligatory for the Court to take up such issue, whenever it is raised, as a preliminary issue?

This question was considered by several High Courts and the consensus of the judicial opinion is that the Court has discretion under the aforesaid sub-rule to take up such an issue as a preliminary issue or to try along with other issues. See the decisions of the Patna High Court in DHIRENDRANATH V. APURBA KRISHNA1), Allahabad High Court in SUNNI CENTRAL WAQF BOARD V. GOPAL SINGH VISHRAD2) and Orissa High Court in BAIRAGI CH.DAS V. KARTIK CHANDRA DAS3).

It must be noted here that the discretion that is vested in the Court should be exercised judiciously. Simply because a jurisdictional objection is taken, that too at a very late stage as in this case, the Court shall not readily take up that issue as a preliminary issue without forming an opinion that the jurisdictional issue raised in the case is a pure question of law and the suit can be disposed of by deciding that issue alone. Whether a jurisdictional issue is a pure question of law or a mixed question of law and fact depends upon the facts of each case. Where it is a mixed question of law and fact, it need not be taken up as a preliminary issue.

In the present case, the additional plea that is taken up by the defendants, though relating to jurisdiction, is a bald one. How the jurisdiction of the Civil Court is ousted under sub-section (2) of Section 4 of the A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 is not explained or elucidated either in the amended written statement or in the affidavit filed in support of the interlocutory application. Therefore, without taking evidence, it may not be possible to come to a correct conclusion on the issue relating to jurisdiction. Thus, the issue relating to jurisdiction appears to be a mixed question of law and fact. In this view of the matter, the order of the Junior Civil Judge, Madakasira, to take up the issue relating to jurisdiction, as a preliminary issue, cannot be sustained and it is accordingly set aside.

The Civil Revision Petition is accordingly allowed. No costs.

Since the suit is of the year 1988, the learned Junior Civil Judge, Madakasira is directed to try and pronounce Judgment on all the issues, including the jurisdiction issue, as expeditiously as possible.