ORDER
E. Dharma Rao, J.
1. This Civil Revision Petition is directed against the order dated 8.5.2000 passed in I.A. No. 195 of 2000 in O.S. No. 19 of 1993 by the learned Senior Civil Judge, Bobbili, whereby the learned Senior Civil Judge dismissed the application filed under Order 14 Rule 2(2) of the Code of Civil Procedure praying to try the first issue as preliminary issue, as the said issue relate to the jurisdiction of the Court and also relates to the bar relating to the filing of the suits OS No. 48 of 1982 and 49/82 (Old OS Nos. 37 and 38 of 1987) filed under Secs. 7, 7-A(1), 7-A(6), 8(2), 8(8) and 15 of the A.P. Land Grabbing (Prohibition) Act, 1982 and also Section 18 of the Industries (Development and Regulation)Act, 1951
2. The above suit was filed by the petitioner before the Vacation Civil Judge, Vizianagaram, as OS No. 19 of 1993 for declaration that the decree passed by the Subordinate Judge's Court, Bobbili, in OS Nos. 37 and 38 of 1987 are not binding upon him and sought for a temporary injunction in I.A. No. 36 of 1993 restraining the first respondent therein from interfering in any manner with the peaceful possession and enjoyment of the plaint schedule property by way of executing the decree passed by the Subordinate Court, Bobbili in the said suits. Thereafter he filed a petition to amend the plaint by way of adding paragraph Nos. 5 to 7 which was allowed on 22.12.1999. Thereafter, he filed I.A. No. 167 of 2000 under Order 14 Rule 5 of the Code of Civil Procedure to frame additional issues, which are legal issues. But the Court dismissed the said application on 18.4.2000 holding that the first issue already framed covers all the said legal pleas.
3. This was resisted by the respondent contending that the first issue is an issue involving facts and also law and therefore, it is not possible to decide the said issue as a preliminary issue, relating to the jurisdiction of the Court in trying OS No. 37 and 38 of 1987. It is further contended that Order 14 Rule 2(2) of the Code deals with jurisdiction of the Court to try the suit in which the issues relating to the jurisdiction of the Court is one of the issues but not concerning with the jurisdiction of another court or the same Court in trying another suit. So the provisions of Order o14 of the Code do not apply to the present petition.
4. The Court below on the question whether the petition is liable to allowed to try the issue No.1 in OS No. 19/93 as a preliminary issue, has considered the judicial pronouncements of this Court and other courts and the import of sacrosanct provisions of Order 14 Rule 2 of the Code. The suit OS No. 19 of 1993 is for declaration that the decree passed by the Subordinate Judge's Court, Parvathipuram in OS No. 37 and 38 of 1987 in favour of the first defendant therein and against the other defendants are not binding upon the plaintiff and, therefore, the Court cannot decide the issue No.1 as a preliminary issue to hold that the Subordinate Judge's Court, Parvathipuram or Bobbili has no jurisdiction to try the suits OS Nos. 37 and 38 of 1987. As per the provisions of Order 14 Rule 2 (2) of the Code, to decide any particular matter on a preliminary issue, the issues both of law and fact should arise touching the jurisdiction of the Court to try the suit or a bar to the Court created by any law for the time being in force.
5. The issue No.1 settled in OS No. 19 of 1993 was not at all related to the maintainability of the suit or not at all related to the bar of jurisdiction of the Court to try the suit OS No. 19 of 1993 and therefore, under Order 14 Rule 2(2) has no application to try the Issue No.1 in OS No. 19 of 1993 as a preliminary issue and therefore, held that the petition is liable to be dismissed.
6. Against this finding, the present civil Revision Petition is filed. The learned counsel for the petitioner submitted that issue No.1 relates to the jurisdiction and hence, it has to be tried as a preliminary issue and it relates to the bar relating to the filing of the suits OS No. 37 and 38 of 1987 in view of the Land Grabbing (Prohibition) Act, 1982 and the Industrial (Development and Regulation) Act, 1951 and contended that the order passed by the Court below is liable to be set aside.
7. On the other hand, the learned counsel for the respondent submitted that the above suits 37 and 38 of 1987 were filed against the employees of the Company for recovery of possession of the quarters after their retirement, obtained judgmentand decree in favour of the company and the petitioner in the present Revision Petition is a sub-tenant and, therefore, he has no locus standie to continue in the quarter of the company, to challenge the decrees passed therein or to maintain the proceedings. He further submitted that consequent to the Amendment of the Code in 1976, the word 'shall' is replaced by ' may' and therefore, it is the discretionary power of the Court to decide the issue either preliminary issue or to decide the same along with other issues and placed reliance on the decision of Sunni Central Waqf Board and Others Vs . Gopal Singh Vishrad &Others;, : AIR1991All89 wherein the amended provisions of Order 14 Rule 2 of the Code were considered by the Full Bench and held that Order 14 Rule 2 as it stood prior to 1976 amendment, once the Court came to the conclusion that the case or any part thereof could be disposed of on the issues of law only, it was obliged to try those issues first and the other issues could be taken up only thereafter, if necessity survived. The Court had no discretion in the matter. This flows from the use of the words 'it shall try those issues first'. The word 'shall' used in old Order 14 Rule 2 has been replaced in the amended Rule by the word 'may'. Thus, now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue. It is further observed that after the amendment to Civil Procedure Code brought about in the year 1976, it is discretionary with the Court to take up an issue as a preliminary issue. The Court is not bound to take up any issue as a preliminary issue and all the judicial discretions have to be exercised reasonably. Even if some of the issues fall within the ambit of Clauses (a) and (b) of Rule 2(2) of Order 14, the Court can, on reasonable exercise of discretion, refuse to try those issues as preliminary issues.
8. For better appreciation of the rival contentions, it is necessary to have a glance of Order 14 Rule 2(2) of the Code, which reads as under:
'...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...'
9. The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try any issue despite the provision contained in Sub-Rule (2) of Rule 2. The words it may try are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue. Sub-Rule (2) of Rule 2 of Order 14 is indicative of the fact that, the Court has got discretion in the matter. Thus where the issue in question concerns mixed question of law and fact which requires evidence to be recorded, it was held that in view of the fact that the trial Court has discretion in deciding as to whether an issue has to be tried as a preliminary issue, and as it was not shown that the declining of the request to try the issue as a preliminary issue was likely to cause injustice, trial Court's order was not liable to be interfered.
10. A reading of provisions of Sub-Rule (2), it is clear that the tests laid down are stringent and their compliance is to be strictly enforced, this is because, the provisions of Sub-Rule (2) is in the nature of exception to the general procedure provided in Sub-Rule (1) of Rule 2 of Order 14. The Courts have therefore, viewed with reluctance any request to take up an issue as preliminary issue. From the provisions of Sub-Rule (2), it is manifest that where an issue is to be tried as a preliminary issue or not is at the discretion of the trial Court and while exercising its discretion, the trial Court must be satisfied that the suit or any part thereof may be disposed of as an issue of law only and that issue relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force.
11. In the backdrop of these settled principles of law, the Court below has considered the contention raised by the petitioner that in view of the provisions of Land Grabbing Prohibition Act and Industrial Development and Regulation Act, permission of the Central Government has to be obtained and therefore, the trial Court at Parvathipuram has no jurisdiction to try OS No. 37 and 38 of 1987, which were transferred and renumbered by the Court at Bobbili, and therefore, the judgment and decree passed, is not binding on her.
12. Keeping in view the above stated legal proposition and having regard to Sub-Rule (2) of Rule (2) of Order 14, the Court below has considered that the allegations made in OS No. 37 and 38 of 1987 (formerly OS No. 48 and 49 of 1982 on the file of Subordinate Court, Parvathipuram) reveal land grabbing or not has to be seen only after adducing documentary evidence. The Court below has further considered the scope of the suit in OS No. 19 of 1993 to declare that the decree passed by the said Court in OS No. 37 and 38 of 1987 in favour the first defendant and against the other defendants in the said suit OS No. 19 of 1993 is not binding upon the plaintiff. As such the Court cannot decide issue No. 1 in the suit as a preliminary issue to hold that the Subordinate Judge's Court at Parvathipuram or Bobbili has no jurisdiction to try OS No. 37 and 38 of 1987. As the plaintiff has challenged the decree in the said suits as null and void and is not binding upon him, in the capacity as a tenant of the plaint schedule premises, which was admitted by the 1st defendant, as such basically by producing the oral and documentary evidence during trial of the suit, the petitioner plaintiff to prove his capacity as a tenant of the plaint schedule premises and thus he is required to prove that he is the person having derived the right and title to the suit property through the defendants in OS Nos. 37 and 38 of 1987.
13. On the basis of the provisions of law, the interlocutory application was dismissed by the Court below in exercise of the discretionary power conferred under Sub-Rule (2) of Rule 2 of Order 14, as it is not possible to try the issue with regard to the jurisdiction of the Court to try OS Nos. 37 and 38 of 1987 and to declare that the decrees are not binding on the plaintiff. Thus the issue involved mixed question of fact and law and has to be tried along with other issues in the interest of justice.
14. In view of the principle laid down by the Allahabad High Court in Gopal Singh Vishrad's Case, the Court has rightly held that the jurisdiction issue sought to decided as a preliminary issue is a mixed question of fact and law and therefore, it cannot be decided as a preliminary issue. In these circumstances, the Court has rightly exercised the discretionary power conferred upon it under Sub-Rule (2) of Rule (2) of Order 14. Therefore, the decree and judgments passed by the Senior Civil Judge, Bobbili or Parvathipuram are not binding on the petitioner. As the petitioner is claiming his right through the defendants in the above said suits, as tenant, the fact has to be established through documents and oral evidence. Therefore, I do not see any illegality or irregularity committed by the Court below to entertain the Civil Revision Petition. The Civil Revision Petition accordingly fails and is dismissed. No order as to costs.