M Yogeswara Venkata Ganesh Rao vs A Nagamani
2023 Latest Caselaw 666 AP

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                Civil Revision Petition No.793 of 2021

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, is filed challenging the orders, dated

03.03.2021, dismissing I.A.No.785 of 2018 in O.S.No.112 of 2015

on the file of the Court of Principal Senior Civil Judge, at Anakapalli,

Visakhapatnam District, filed under Order XIV Rule 2 and Section

151 CPC to decide the issue whether that Court has no pecuniary

jurisdiction to try the suit as a preliminary issue.

2. Heard Sri K.A.Narasimham, learned counsel for the revision

petitioner/defendant and Sri P. Rajasekhar, learned counsel for the

respondent/plaintiff. Pending revision, since the petitioner died, his

legal representatives were brought on record as petitioners 2 to 4,

vide orders, dated 02.05.2022, passed in I.A.No.2 of 2021. The

parties shall hereinafter be referred to as they are arrayed before

the trial Court, for the sake of convenience and clarity.

3. The petitioner is the defendant and the respondent is the

plaintiff. The suit was filed for eviction of the defendant from the

plaint schedule property and for recovery of an amount of

Rs.5,30,400/- with subsequent interest @ 24% per annum.

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4. The suit schedule property is a building bearing D.No.11-6-43

consisting of ground and first floor situated in Station Road,

Anakapalli. The admitted case of both parties is that the rent in

respect of the ground floor is Rs.1900/- and for the first floor

Rs.600/-, both making a total of Rs.2500/- per month and the

tenancy in respect of both floors, i.e., the plaint schedule property

as a whole is unit of tenancy. In this backdrop, the defendant filed

I.A.No.552 of 2018 to frame an additional issue questioning the

jurisdiction of the civil Court claiming that it is the rent control

authority which alone can decide the dispute as per Section 32(c) of

Andhra Pradesh Buildings (Lease, Rent And Eviction) Control Act,

1960 (hereinafter referred to as "the Act"). Accordingly, the

petition was allowed and an additional issue was framed.

Thereafter, the present petition is filed to decide the same as a

preliminary issue.

5. The petition was opposed by the plaintiff by filing counter

stating that this suit is clubbed with another suit in O.S.No.105 of

2013 which was filed for recovery of damages and for eviction of

the defendant from the plaint schedule property and both the suits

were clubbed for conducting common trial and affidavit in lieu of

chief examination was also filed. But the present petition was filed

at the stage of cross-examination of PW1, and therefore, the

petition is not maintainable. It is also contended that since the

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defendant submitted to the jurisdiction of the Court, he cannot

insist for trying the issue as a preliminary issue on the point of

jurisdiction. It is further contended that O.S.No.105 of 2013 was

filed for recovery of damages of Rs.4,93,200/-, whereas the present

suit is filed for recovery of damages of Rs.4,10,400/- from the

defendant, and therefore, the civil Court has jurisdiction to try the

suit. It is denied that the authority created under the Act alone has

jurisdiction. It is further contended that the petition is filed only to

harass the plaintiff who is an old woman.

6. After hearing both parties, the trial Court dismissed the

petition observing that the issue of jurisdiction can only be taken up

on appreciating evidence, but cannot be decided straightaway as a

pure question of law touching the pecuniary jurisdiction of that

Court. It is further observed that the rent payable is Rs.2,500/- per

month but as the plaintiff admitted of having received advance of

Rs.15,000/- from the defendant and is refundable on vacating the

premises, there is a triable issue with regard to jurisdiction along

with other issues, and thus, at this stage, conclusion cannot be

arrived at with regard to taking up the issue of jurisdiction as

preliminary one. It is also noted that since both suits in O.S.No.105

of 2013 and the present suit O.S.No.112 of 2015 were clubbed for

taking up common evidence, even if the issue of jurisdiction is

taken up as a preliminary issue, triable issue with regard to

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quantum of rent which forms basis for jurisdiction would be

determined only upon adducing evidence but not based on the

material filed by the petitioner. The trial Court is of the view that if

the petitioner came up with a clear case ex facie that the civil Court

has no jurisdiction in view of admitted rent being less than

Rs.2,000/- per month, then the case would be different and issue

can be taken up at the first instance. Another main point recorded

by the trial Court is that since the Andhra Pradesh Residential and

Non-Residential Premises Tenancy Act, 2017 has an overriding

effect on the previous Act and thus, at this stage, additional issue

cannot be taken up as a preliminary issue. With all these

observations, the trial court felt that additional issue can be decided

along with the other issues and dismissed the petition.

7. Having been aggrieved by the same, this revision petition is

filed by the petitioner/defendant.

8. Learned counsel for the petitioners submitted that the

admitted facts clearly show that the suit is not maintainable as per

Section 32(c) of the Act, and as such, no further trial at all is

required, and therefore, to avoid delay, it is necessary to decide the

issue as a preliminary issue. In this regard, he further submitted

that the plaint schedule property falls within the municipal

corporation area after it was merged with Greater Visakha Municipal

Corporation, vide G.O.Ms.No.375, Municipal Administration & Urban

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Development (ELEC.II) Department, dated 30.07.2013, and as per

Section 32(c) of the Act, if the rent of a building located within a

municipal corporation limits is Rs.3,000/- or below per month, the

rent control authority under the Act alone has jurisdiction and so, in

the present case, as admittedly rent is Rs.2,500/- per month, the

civil Court has no jurisdiction and therefore, the additional issue

needs to be taken as a preliminary issue.

9. Learned counsel for the respondent vehemently opposed the

petition stating that any issue need not be taken up as a preliminary

issue since the Court has discretion and it is not mandatory to take

up an issue as a preliminary issue. He further submitted that it is

not a pure question of law and any issue relating to pecuniary

jurisdiction need not be decided as it does not oust the jurisdiction

totally. He supported the observations of the trial Court in the

impugned order.

10. Before proceeding further, it is felt necessary to note the

following provisions which are relevant.

Section 32 (c):

"32. Act not apply to certain buildings:--The provisions of this Act shall not apply,--

(a)&(b)....

(c) to any building the rent of which as on the date of commencement of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 2005, exceeds rupees three thousand and five hundred per month in the areas

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covered by the Municipal Corporation in the State and rupees two thousand per month in other areas.

Order XIV Rule 2 CPC:

2. 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; & for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, & may deal with the suit in accordance with the decision on that issue.

11. A perusal of Order XIV Rule 2(2) CPC shows that there is

discretion to Court to decide any issue as a preliminary issue or not

though such issue falls within the scope of the said provision. On a

plain reading of the additional issue, it appears that it can be easily

decided on the admitted facts, i.e., rate of rent and the location of

the property, in the light of Section 32(c) of the Act. The discretion

given under Order XIV Rule 2 CPC is not absolute discretion and

wherever there are no parameters for exercise of such discretion

conferred under law, it is always necessary to exercise judicious

discretion. Therefore, it contemplates that the facts and

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circumstances in each case have to be looked into for the purpose

of exercise of jurisdiction in a proper, balanced and judicious

manner.

12. In the present case, since this suit is tagged to other suit and

the common evidence is required to be taken in both the matters,

the trial Court, besides other reasons, felt that it is necessary to

take evidence in common and to decide this issue along with other

issues in the suit. So, the civil Court has not improperly exercised

the discretion while passing the order impugned, it does not require

any interference.

13. In addition to that, in view of the amendment to the Rent

Control Act subsequent to filing of the suit and repealing the earlier

Act, except saving the proceedings which were already instituted

under the earlier Act, its effect is also a complex issue involved in

this case requiring careful examination. As such, at this juncture, if

the additional issue alone is decided, the suit may not be completely

disposed of and for that reason also, the trial Court has rightly

exercised its discretion in not taking up the additional issue as a

preliminary issue. It is to be noted that by not taking up the

additional issue as a preliminary issue, it is not that the trial Court

has taken any view contrary to the contention of the petitioner

regarding the jurisdiction. Therefore, the same issue can be

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decided at an appropriate stage and the order impugned in the

revision needs no interference.

14. Accordingly, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

_________________ B. S. BHANUMATHI, J 08-02-2023 RAR