(1) These conjoint revision petitions are against the orders declining to decide preliminary issue under o. 14, to decide preliminary issue under o. 14, r. 2, c. P. C. The petitioners are defendants 1 and 2. The plaintiffs filled suits challenging the legality and validity of the order dt. 20 - 6 - 1978 in r. C. 4407/77 and similar ordered passed under s. 6 (1) of the andhra pradesh occupants of homesteads (conferment of ownership) act of 1976 (hereinafter referred to as the act). The defendants 1 and 2, petitioners herein, field applications for deciding the preliminary issue as to jurisdiction of the court to entertain the suit in view of the express bar of suit in the civil court contained in the act. These applications are resisted by the respondents - plaintiffs on the ground that the petitioners have not filed written statements in the suit and orders passed under s. 6 (1) of the act are actuated by mala fides and vitiated by various illegalities and arbitrariness and violation of fundamental principles of procedure and as this a mixed question of fact and law, the preliminary issue need not be decided and all the issues arising in the trial can be taken up and declined to hear the preliminary issue.
(2) The learned counsel for the petitioner contended that the jurisdiction of the civil court is expressly barred by s. 11 of the act and the orders passed under the act by the authorised officer are amenable to appeal and revision provided under ss. 8 and 9 of the act and adequate remedies are provided under the act to challenge the validity of the orders. The learned counsel for the respondent contended that the subject matter of the suit is outside the purview of the provisions of the act and that the impugned order is in contravention of fundamental principles of judicial procedure and violative of principles of natural justice and the order is vitiated by mala fides and as such the civil court has jurisdiction to entertain suits notwithstanding the bar envisaged under the act.
(3) To appreciate the rival contentions, it is necessary to have an insight into the provisions of o. 14, r. 2. C. P. C. And s. 11 of the a. P. Occupants of homesteads (conferment of ownership) act, order 14, rule 2, c. P. C.
"court to pronounce judgement on all issues: - - (1) notwithstanding that a case may be disposed of an 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 is 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 that issue"
. Section 11 of the act reads as under.
"bar of jurisdiction of civil court: - - no civil court shall have jurisdiction in respect of any matter which the government are, or the authorised officer is, empowered by or eviction shall be passed and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this act"
.
(4) O. 14, r. 2, c. P. C. , confers power on the court to try a preliminary issue relating to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. The court is for the time being in force. The court is empowered to postpone the settlement of other issues until the preliminary of other issues until the preliminary issue is decided. In this case the jurisdiction of the court to hear this matter is questioned on the ground that there is questioned on the ground that there is an embargo on the civil court to try the suit in respect of a matter arising under the special enactment and as such both cls (a) and (b) of sub - rule (2) are attracted. Order 14, r. 2, c. P. C. Has been amended by the c. P. C amendment act 1976. Prior to amendment o. 14, r. 2, preliminary issue with respect to a question of law, but this is circumscribed to the issues relating to jurisdiction and express bar of civil suit under any enactment and the amendment is a sequel to the recommendation of the law commission in its 54th report. The jurisdiction envisaged under cl. (a) is of wider implications but the bar provided under cl. (b) focuses upon the specific situation of embargo visualised under any law. The insertion of cl. (b) is significant of ouster of jurisdiction of civil court, explicitly or by implication, under special enactments and provided with a view to have expeditions adjudication by the remedies provided under the self contained enactments thereby avoiding delay and parallel proceedings. Cl. (b) provides for framing of preliminary issue to thwart the attempt to prolong the matters by giving undue wider dimensions and protract the proceedings and thereby defeat the object of special enactments.
(5) Section 11 of the act expressly ousts the jurisdiction of the civil court in respect of the matters arising under the act. The special remedies by way of appeal and revision have been provided under the act. The special remedies by way of appeal and revision have been provided under the act as against the orders passed by the primary authority. As this is a self contained enactments, the hierarchy of the tribunals constituted under the act are only forms for adjudicating the issues and recourse to the civil courts is expressly barred. Even in a situation where there is no express bar, the ouster can be implied from the context and set up of the provisions of the act and such implication of ouster of jurisdiction is profusely beset where adequate remedies by way of appeal and revision are provided under the act.
(6) The preliminary issue that has to be considered is whether the bar contained in s. 11 of the act does not eclipse the jurisdiction of the civil court to adjudicate the matter arising in the suit. In a case where there is express bar by the law ousting jurisdiction of the civil court, the issue has to be necessarily examined initially in view of o. 14, r. 2, c. P. C. It is evident that the interplay of cl. (b) of o. 14, r. 2. C. P. C. And s. 11 of the act displays lack of jurisdiction of civil court subject to limitations and eroding factors that may be focused by the respondent at the time of hearing the preliminary issue but the framing of issue itself cannot be nipped in the bud.
(7) It is contended by the respondents that the written statement is not yet filed by the defendants and so the question of framing an issue does not be necessarily framed after the filing of the written statement only but even on an application filed or on an objection taken with regard to the jurisdiction of the civil court to proceed in the matter, the court can address itself to this aspect and decide the same. It is also further contended that insofar as allegations of mala fides and otherwise, the evidence has to be taken at this stage and also at the time of full - fledged trial and this may result in duplication and unnecessary delay this contention is devoid of merit.
(8) For purposes of ascertaining the jurisdiction the court can record evidence necessary for the purpose of deciding the point of jurisdiction and there is not bar to the same and if the court comes to the conclusion that there is no jurisdiction, further trial and further examination of the witnesses can be avoided. The contentions raised by the learned counsel for the respondents that the civil court has no jurisdiction on the facts of this case, cannot be considered at this stage because it is only after the preliminary issue is framed, merits regarding the same have to be considered by the trial court.
(9) The learned counsel for the petitioner relied upon the decision reported in gatmal v. Amaravathi dyeing pvt. Ltd. (air 1976 andh pra 70) wherein this court while cautioning that the decision should be given on all the issues arising in the suit to avoid unnecessary remained and protraction of litigation, but at the same time held that in a case where the issue of territorial jurisdiction is involved, it is always better that the question should be decided in the first instance to avoid further proceedings. It is also held that when the issue can be separated and the evidence pertaining to the issue can be recorded, it always safe to decide the same and this would save unnecessary expenditure and waste of time for the parties concerned. In praduman kumar v. Girdhari singh (air 1970 raj 131) the rajastan high court held that if the decision of a case is possible on determination of an issue of pure law, it must be decided first and this was rendered under the unamended provisions of o. 14, r. 2, c. P. C. The decision of this court reported in sarveswaraswamy vari temple v. Veerabhandrayya (1961) 1 andha wr 250) is adverted to wherein it is held that certain properties belong to the temple under s. 87 of the hindu religious and charitable endowments act, as it does not come with in the zone of the bar enacted in the first limb of s. 93 of the said act. His court also observed that the suit should not be normally disposed of on preliminary issues and in view of the specific circulars issued by the high court, as far as possible, the subordinate courts should receive the evidence adduced and decide all the issues in order to avoid a piecemeal trial and a protracted litigation in the shape of an appeal and remained in the event of the preliminary issue not being upheld by the appellate court. In bhatia co - op housing society v. D. C. Patel (air 1953 sc 16) the supreme court held that a civil court has inherent power to decide the question of its own jurisdiction and on a probe into the matter, it is for the court to decide whether it has jurisdiction in respect of the suit. In this decision the supreme court is concerned with the dispute between the lessee of the premises belonging to government court finally held on the facts and circumstances of that case that the dispute between the lessee and the subtenant is outside the purview of the bombay rents, hotel and lodgin house rates, central act. In secy. Of state v. Mask and co. (air 1940 pc 105) the privy council held that the exclusion of the jurisdiction must be explicit or implied and even in a case where the jurisdiction is excluded, the civil court has jurisdiction to examine cases where the provisions of the act are not compiled with, or the statutory tribunal does not act according to the fundamental principles of judicial procedure. In abdul v. Bhawani (air 1966 sc 1718) the supreme court held that on the facts of the case the jurisdiction of the civil court is not ousted, as the declaration of the title and possession is outside the scope of the act. In union of india v. Tarachand gupta and bros. (air 1971 sc 1558) the supreme court held that in a situation where the officer under the imports and exports (control act, 1947 had no right to travel beyond the scope of the entry 295 under the said act and if he does so, the jurisdiction of civil courts is not excluded, the decision of this court in t. Rosi reddy v. S. Laxmaiah (1974 - 1 aplj 26) : (air 1974 andh pra 171) has been relied upon for the proposition that the jurisdiction at the inception of the suit depends upon the averments made in the plaint but the circumstances how it has been camon flaged is not relevant for this purpose. In union of india v. A. V. Narasimhalu (1970 - 2 scr 145) the supreme court held as follows:
"normally an action of an administrative authority interfering with the right to a civil court. Yet in the case of a right which depends upon a statute, the jurisdiction of the civil court to grant relief may by express provision or by clear implication of the statute, be excluded. Where a statute re - enacts a right or a liability existing at common law, and the statute provides a special forum of remedy, exclusion of the jurisdiction of the civil court to grant relief in the absence of an express provision, will not be readily inferred. Where, however, a statute creates a new right or liability and it provides a complete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the civil court to grant relief is barred"
. In bata shoe co. V. Jabalpur municipality (air 1977 sc 955) the supreme court held that the c. P. And berar municipalities act contain provisions enabling the aggrieved party to challenge the illegal assessment and in view of the special remedies provided under the act, the ordinary remedy by way of a suit is excluded on the interpretation of the provisions of the act. In gundaji v. Ramachandra (air 1979 sc 653) the supreme court held that the civil court has no jurisdiction to decide the matter arising under the bombay tenancy and agricultural lands act, as the jurisdiction of the civil court is ousted by implication. In ramdayal umraomal v. Pannalal jaganathji (air 1979 madh pra 153) (fb) the full bench of the madh. Pra. High court held that where the issue of jurisdiction is a mixed question of law and fact requiring recording of evidence, the requiring recording of evidence, the preliminary issue cannot be tried. In this case the issue of territorial jurisdiction is involved and is not concerned with the bar postulated by an act and its was held that the issue permeates the entire scope of the suit. In syed mohd. Baquir eledross v. State of gujarat (1981 - 4 scc 383) : (air 1981 sc 2016) , the supreme court held that the bar to the jurisdiction of the civil court cannot be spelt out from the expression finality of the decision of the government particularly when there is no adequate remedy provided under the act. There is no express bar to the jurisdiction of the civil court in this case.
(10) The principles that emerge from the decisions cited boat are that in the event or civil court, the preliminary issue regarding jurisdiction or bar should be normally taken up in the first instance and in the process of determination the courts should bear in mind whether the relief sought in the suit is completely outside the brackets of the special enactment or the order is tainted by mala fides and ulterior considerations. For the purpose of framing the issue the necessary pre - requisite is to consider whether there is a bar to the civil court trying the suit by a provision under any law. In the process of trying the preliminary issue, it has to be considered whether the rigour of the bar contained in the enactment is diluted. The salutary principle of hearing all the issues at the same time contained in the circular issued by this court should be adhered to normally but in a situation where a bar to the suit is contemplated by the act, o. 14, r. 2 (b) c. P. C warrants the framing of preliminary issue and initial decision of the same. The court below erred in declining to frame the preliminary issue.
(11) The order of the trial court is set aside and the matter is remitted for deciding the preliminary issue viz. , whether the court has jurisdiction to try the suit in view of the bar contained in s. 11 of the a. P. Occupants of homesteads (conferment of ownership) act, 1976.
(12) In the result the civil revision petitions are allowed. No costs. Petitions allowed.