Judgment:
S.C. Mohapatra, J.
1. Defendant Nos. 2, 4 and 7 are the petitioners in this Civil Revision.
2. Gase of plaintiff is that defendants executed a demand promissory note and on depositing title deeds took loan from the plaintiff. In 1982, they acknowledged and extended the period of payment. When no payment was made, suit was filed for recovery of loan amount as per demand promissory note and to recover the same by sale of the mortgaged property in case for recovery is not possible. In their written statement defendants raised the question of territorial jurisdiction of Bhawanipatna Court Under Section 16, CPC since the properties mortgaged by deposit of title deeds were in Andhra Pradesh. On this objection, plaintiff made a prayer for amendment of the plaint by incorporating the relief that in case it is found that the Court has no territorial jurisdiction to pass a simple decree for money on basis of demand promissory note. Defendants prayed to hear the Issue of territorial jurisdiction as preliminary issue. Trial Court allowed the prayer for amendment of plaint and deferred the hearing of the issue of territorial jurisdiction along with other issues. This is grievance of the petitioners.
3. M. C. R. Nanda, learned counsel appearing for petitioners submitted that non-consideration of issue of territorial jurisdiction as preliminary issue is material irregularity in exercise of jurisdiction and petitioners are prejudiced since they will have to lead evidence on all issues which would be unnecessary if it is found that trial Court lacks territorial jurisdiction, As regards amendment of the plaint, Mr. Nanda submitted that prayer for amendment to convert the suit to a money suit after the period of limitation is also material irregularity in exercise of Jurisdiction .
Mr. M. N. Das, learned counsel for opposite party (plaintiff) submitted that amendment has been sought for to bring the suit within jurisdiction since defendants raised the question of lack of territorial jurisdiction and nature of the suit does not change since Court has jurisdiction to grant relief of recovery of money Under Section 16 proviso CPC.
4. If the amendment as prayed for is allowed, the question of territorial jurisdiction need not be heard as preliminary issue since the suit cannot be finally disposed of as on the prayer of plaintiff Court has to examine the issue relating to its jurisdiction to pass a money decree only in terms of Section 16 proviso CPC. Where an issue on jurisdiction if answered in favour of absence of jurisdiction to grant a relief only and does not dispose of the entire suit, such issue ought not to be heard piecemeal Besides, it is not mandatory for a Court to hear an Issue relating to Jurisdiction as preliminary issue. It is within the discretion of the Court. Where trial Court was not inclined to invoke its discretion which cannot be said to be wholly unreasonable, refusal to exercise Jurisdiction ought not to be interfered with in exercise of revisional power since such power is not same as appellate power and legislature in its wisdom has limited the exercise of power of revision to question of jurisdiction only. Mr. Nanda relied upon the decision reported in AIR 1960 Orissa 130 (Ram Krishna Panda and Anr. v. Natabar Panda and Ors.) which was a case of pecuniary jurisdiction and while rendering the decision an earlier decision reported in H.R 1958 Cut. 180 (Y. Krushnamurty and Ors. v. Maddi Veeranga) was distinguished on the ground that it is a case of territorial jurisdiction.. On the reasons given in AIR 1960 Orissa 130 (supra), question of territorial jurisdiction is not to be tried piecemeal. However, after Order 14, Rule 2, CPC was amended by Act 104 of 1976, a new look is called for and the decisions on unamended Order 14, Rule 2, CPC may not have any force. In view of this, I am inclined to hold that decision of trial Court to hear the issue of jurisdiction along with other issues, calls for no interference.
5. Objection of Mr. Nanda to amendment of plaint in 1989, however, has some force. A suit on mortgage has a different period of limitation than a simple suit for money. Where a suit for money would be barred by limitation on the day it was filed, plaintiff ought not to be permitted to convert the suit for mortgage to a suit for money only. That would amount to premium to laches and also to permit a party to over-reach a Court. Opportunity to file additional written statement or costs cannot mitigate the prejudice of the defendants and he may have to incur liability in respect of a barred claim. Accordingly, trial Court was not justified to allow amendment, While so finding, I may not be understood to have held that trial Court cannot grant relief of a decree for money on the original relief sought by attracting Section 16 proviso CPC, if the same is permissible under law to grant a lesser relief of which I express no opinion at this stage.
6. In conclusion, petitions of both the parties in the trial Court are rejected and civil revision is allowed in part. No costs.