Sri Lakshminarayana Panigrahi vs Sri Jagannadhaswamy Temple

P.S. Narayana, J.—This Civil Revision Petition is directed against an order made on 8-9-1999 in I.A.No.126/99 in O.S.No.81/91 on the file of Junior Civil Judge, Sompeta.

The Revision Petitioner is the petitioner in I.A.No.126/99 and the defendant in O.S.No.81/91 on the file of Junior Civil Judge, Sompeta. The Revision Petitioner-defendant filed the application under Order 14 Rule 2 C.P.C. r/w. Section 151 C.P.C. to try Issue No.3 relating to the jurisdiction as the preliminary issue and the said application was dismissed by the court below and aggrieved by the same, the present Civil Revision Petition is filed.

Sri Subramanya Narsu, the learned counsel representing the Revision Petitioner had contended that the Junior Civil Judge, has no jurisdiction at all to entertain a suit since the Junior Civil Judge does not fall under the definition of ''Court'' within the meaning of Section 2(8) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, for short hereinafter called the "Act" for the purpose of convenience. The learned counsel further submitted that since it is an aspect relating to the jurisdiction the provisions of Order 14 Rule 2 C.P.C. are clearly attracted and the court below had totally erred in dismissing the application filed by the Revision Petitioner. The learned counsel also had further drawn my attention to the relevant provisions of the Act.

Sri V.L.N.G.K. Murthy, the learned counsel representing the respondent had contended that the respondent-plaintiff is Devasthanam represented by its Executive Officer and the suit is a very old one and the aspect of jurisdiction, though raised in the written statement, only after the matter was made part-heard, with a view to delay the matter, the Revision Petitioner-defendant had thought of this application. The normal principle is that all the Issues are to be tried together and the learned counsel also had taken me through the relevant provisions of the CPC and had placed reliance on BAIRAGI CH.DAS Vs. KARTIK CHANDRA DAS AND OTHERS 1; DHIRENDRANATH CHANDRA Vs. APURBA KRISHNA CHANDRA AND OTHERS 2 and also USHA SALES LTD Vs. MALCOLM GOMES AND OTHERS3.

Issue No.3 in O.S.No.81/91 on the file of Junior Civil Judge, Sompeta is "Whether this Court has jurisdiction to entertain this suit". The main contention of the Revision Petitioner-defendant is that a Junior Civil Judge does not fall within the meaning of ''Court'' under the provisions of the Act. This objection was raised even in the written statement and issues were settled long back. It is pertinent to note that though the issue was settled long back and though it is a matter relating to the jurisdiction, the Revision Petitioner-defendant had not chosen to make any application requesting the Court to try this issue as the preliminary issue at the earliest point of time, but had filed the present application i.e., I.A.No.126/99, after a long lapse of time after the institution of the suit. In this context, it may be relevant to look into Order 14 Rule 2 C.P.C. Order 14 Rule 2(2) C.P.C. reads as follows:

"Where issues both of law and of fact arise in the same suit, and the Court is of the 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."

Here, the words " .....it may try that issue first...." are very relevant. The word used in the provision is "may" and not "shall". The normal rule is that the Court is expected to pronounce judgment on all issues and in cases where it relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, such issue may be tried as a preliminary issue. The object underlying this provision is to avoid wasting of the valuable time of the Court also. But that does not mean that in all cases where this question is raised, necessarily the Court is bound to decide such issue as a preliminary issue only. There may be several facts and circumstances, which may weigh with the Court while exercising the discretion whether to permit a party to raise the question of preliminary issue and when such a question is raised at a belated stage, it cannot be said that the Court is powerless in declining to decide such issue as a preliminary issue and while exercising such discretion, in my considered opinion, the Courts must be given liberty to weigh all the facts and circumstances while deciding an application relating to the dealing of an issue as a preliminary issue. If such discretion is not permitted to the Courts, then in several matters there will be undue delay in disposing of the main matter itself. Experience shows that in matters of this nature, the Courts are also expected to see that the matters are disposed of at the earliest point of time and if the parties are particular of raising a particular issue as a preliminary issue, by way of a preliminary objection, either on the question of the jurisdiction of the Court or bar to the suit created by any law for the time being in force, I am of the considered opinion that as far as possible such objection should be raised at the earliest point of time and not at the belated stage where a suit will be either a part-heard matter or ripe for arguments etc. It is no doubt true that no hard and fast rule can be laid down in this regard, but at the same time, when the court below had exercised the discretion in a well-considered order and declined to deal a particular issue as a preliminary issue, the revisional Court should be slow in interfering with such an order unless the revisional Court is satisfied that the approach of the court below is totally erroneous and unjustified and had not exercised its jurisdiction in proper perspective. Apart from this aspect of the matter, since the impugned order is made at a stage when the suit was made already part-heard, I am not inclined to interfere with the order of the court below inasmuch as I am of the opinion that if the order is allowed to stand, it will not occasion in any failure of justice. Apart from it, in the order of the court below, I do not find any illegality or material irregularity within the meaning of Section 115 C.P.C. warranting interference by this Court (THE MANAGING DIRECTOR (MIG), HINDUSTAN AERONAUTICS LTD., BALANAGAR AND ANOTHER Vs. AJIT PRASAD TARWAY, MANAGER (PURCHASE AND STORES), HINDUSTAN AERONAUTICS LTD., BALANAGAR, HYDERABAD4).

It is no doubt true that in M/s. HYDERABAD ASBESTOS CEMENTS PVT LTD., Vs. MOHD ENTERPRISES 5, it was held that though the word "may" has been employed in Order 14 Rule 2(2) C.P.C., this has been a deliberate amendment in the year 1976 which is to be read as "shall" and therefore mandatory. But however, in the light of the view expressed by me above that the order if allowed to stand will not occasion in failure of justice, it may not be necessary in the present context to deal with this aspect further. Suffice for me to say that in cases where the Courts are called upon to decide a particular issue as a preliminary issue, the following principles may be kept in mind:-

(1) Normally Courts are expected to decide all the issues and pronounce the judgment and this is the general principle;

(2) If a party intends to seriously raise a question that a particular issue has to be decided as a preliminary issue, the objection should be raised at the earliest point of time and not at a belated stage;

(3) The Courts are expected to decide whether a particular issue has to be tried as a preliminary issue or not, taking all the facts and circumstances into consideration and the discretion to be exercised in this regard must be judicious;

(4) Where matters are part-heard and applications are filed with a view to stall the proceedings and are not bonafide applications, practice of raising such objections has to be deprecated;

(5) Normally, Courts should not be inclined to try an issue as a preliminary issue, if factual aspects also are involved, which may require letting in of evidence by the parties;

(6) Prima-facie, the Courts have to look into whether the issue to be tried as a preliminary issue is only a pure question of law or questions of fact also are involved for deciding the matter;

(7) Courts must always try to avoid delay in disposing of matters and must be reluctant to try an issue as a preliminary issue if they are satisfied that such objections are raised only with a view to delay the disposal of the matter finally; and

(8) Courts should be slow, cautious and careful while taking up an issue as a preliminary issue in the light of the resultant complications.

In view of the above discussion and for the reasons stated, I am not inclined to interfere with the order of the court below. Accordingly, the Civil Revision Petition is dismissed. Since the suit is a very old one, I do express a hope that the court below will decide the matter at the earliest point of time, as expeditiously as possible. No costs.